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2017-06-06 Agenda with Backup
Cit of Denton City Hall Y 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTON Meeting Agenda Tuesday, June 6, 2017 City Council 12:00 PM Work Session Room & Council Chambers After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, June 6, 2016 at 12:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. Citizen Comments on Consent Agenda 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 June 6, 2017. 3. Work Session Reports A. ID 17-592 Receive a report and hold a discussion on the Denton Development Code (DDC) Update. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Clarion Scope of Services B. ID 17-667 Receive a report, hold a discussion, and give staff direction regarding Tax Increment Financing Reinvestment Zone Number One (Downtown TIF). Attachments: Exhibit 1 Agenda Information Sheet Exhibit 2 Ordinance No. 2010-316 Exhibit 3 Ordinance No. 2011-128 Exhibit 4 Ordinance No. 2011-129 Exhibit 5 Ordinance No. 2014-221 Exhibit 6 Downtown TIRZ (TIF) Value History Exhibit 7 Secs. 311.005 and 311.006 Texas Tax Code Exhibit 8 Presentation C. ID 17-673 Receive a report; hold a discussion, and receive departmental presentations in preparation for the FY 2017-18 Proposed Budget, Capital Improvement Program, and Five Year Financial Forecast. City ofDenton Page 1 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Customer Service Presentation Exhibit 3 - Technology Services Presentation Exhibit 4 - Human Resources Presentation Exhibit 5 - Risk Management Presentation Exhibit 6 - Health Insurance Presentation D. ID 17-730 Receive a report, hold a discussion, and give staff direction regarding an ordinance prohibiting the use of Engine Compression Brakes within the City of Denton. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Ordinance 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 17-696 Deliberations regarding Personnel Matters - Under Government Code Section 551.074. Consultation, discussion and deliberation about the duties, responsibilities, evaluation and employment of the position of City Attorney. B. ID 17-733 Deliberations regarding Real Property - Texas Government Code Section 551.072; Consultation with Attorneys - Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the lease and use of 1001 S. Mayhill Rd., Buildings 101 and 102, and 651 S. Mayhill Rd., Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with lease of lease and use of said property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. City ofDenton Page 2 Printed on 61212017 City Council Meeting Agenda June 6, 2017 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. ID 17-697 Denton Citizen Forester Proclamation B. ID 17-712 Gay Pride Proclamation C. ID 17-713 Men's Health Month Proclamation 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. 1. ID 17-698 B.C. Groves regarding the Police Department's refusal to take her complaint. 2. ID 17-699 Robert Donnelly regarding trust and confidence in the City. C. Additional Citizen Reports - This section of the agenda permits any person not registered for a citizen report to make comments regarding public business on items not listed on the agenda. This is limited to two speakers per meeting with each speaker allowed a maximum of four (4) minutes. Such person(s) shall have filed a 'Blue Card" requesting to speak during this period prior to the calling of this agenda item. 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. City ofDenton Page 3 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — K). 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 — K 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 17-628 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Cherwell Service Desk Management Software; providing for the expenditure of funds therefor; and providing an effective date (RFP 6321 -awarded to Flycast Partners, Inc. in the three (3) year not -to -exceed amount of $139,827.60). Attachments: Exhibit 1 -Agenda Information Sheet Exhibit 2 -Evaluation and Ranking sheet Exhibit 3 -Ordinance Exhibit 4 -Contract B. ID 17-650 Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of Ordinances by modifying section 18-73 to change the speed zones on Country Club Road (FM 1830), Teasley Lane (FM 2181), and Fort Worth Drive (US 377); amending sections 18-212 and 18-213 to reduce the school zone speed limits for Guyer High to reflect the new speed limit on Teasley Lane (FM 2181); altering the prima facie speed limits established for vehicles under the provision of transportation code, section 545.356 upon the following roadways, or parts thereof, within the incorporated limits of the City of Denton; providing a penalty not to exceed $200.00 unless the violation occurs in a work zone and then the penalty shall not exceed $400.00; providing a severability clause; providing a repealing clause; providing for publication; and declaring an effective date. The Traffic Safety Commission recommends approval (5-0). Attachments: Exhibit 1 -Agenda Information Sheet Exhibit 2 -Survey 2181 Exhibit 3 -Map 2181 Exhibit 4 -Survey 377 Exhibit 5 -Map 377 Exhibit 6 -Survey 1830 Exhibit 7 -Map 1830 Exhibit 8 -Ordinance C. ID 17-651 Consider adoption of an ordinance authorizing the City Manager to execute a sewer main cost participation agreement between the City of Denton, Texas and Crawford Hospital Partners, LLC for the City's participation in the oversizing of sewer mains and in accordance with the terms and conditions of this ordinance; authorizing the expenditure of funds therefore; and providing an effective date. (In the not -to -exceed amount of $159,680.00) City ofDenton Page 4 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Attachments: Exhibit 1 Agenda Information Sheet Exhibit 2 Location Map Exhibit 3 Tabulated Calculation of the Oversize Participation Amount Exhibit 4 Sewer Main Cost Participation Agreement Exhibit 5 FY 2017 CIP Detail Sheet Exhibit 6 Ordinance D. ID 17-668 E. F. Attachments: T i7 f�QI Attachments: Consider adoption of an ordinance of the City Council of Denton, Texas authorizing the City Manager to execute and deliver a `National Highway System Program Project Agreement for State -Contracted Traffic Signal Construction (With Municipality Providing Limited Materials or Labor)" between the City of Denton and the Texas Department of Transportation, regarding the City's request for reimbursement of the Federal allowable percentage of the cost of installing traffic signal and other items directly related to the operation of the intersection of US 77 and Nicosia Street within the City that are specified in said agreement; providing the City Manager with authority to carry out the rights and duties of the City regarding said agreement; providing the City Manager with authority to expend funds ($38,240.00) therefor; providing an effective date. Exhibit 1 Agenda Information Sheet Exhibit 2 Agreement Exhibit 3 Ordinance Consider adoption of an ordinance releasing, abandoning and vacating a 0.1195 acre portion of a 0.232 acre sanitary sewer easement recorded in Volume 1729, Page 177, Real Property Records, Denton County, Texas, and located in the B.B.B. & C.R.R. Survey, Abstract No. 192; and declaring an effective date. [Abandonment of a portion of a sanitary sewer easement to remove the encumbrance from the property and update the City real estate records] Public Utility Board approved 7-0 Exhibit 1 - Agenda Information Sheet Exhibit 2 - Location Map Exhibit 3 - Site Map Exhibit 4 - Ordinance ID 17-682 Consider adoption of an ordinance authorizing the abandonment and release of certain blanket electric utility easements owned by the City, to the extent that they encumber certain real property owned by Micah Deweerd Holdings, LLC, a Texas limited liability company, containing approximately 1.61 acres, as described in that Deed recorded as Instrument Number 2016-140641, Real Property Records, Denton County, Texas; being located in the W. Garrison Survey, Abstract No. 1545, City of Corinth, Texas, and providing an effective date. [Partial abandonment of blanket electric utility easements as they encumber Micah Deweerd Holdings property aka Pecan Creek Addition Lot 2located within the City of Corinth] Public Utility Board approved 7-0. City ofDenton Page 5 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Attachments: Exhibit 1- Agenda Information Sheet Exhibit 2 - Location Map Exhibit 3 - Site Map Exhibit 4 - Boundary Survey Exhibit 5 - Applicant Narrative Exhibit 6 - Ordinance G. ID 17-683 Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to sign and submit to the Department of Housing and Urban Development the 2017 Action Plan for Housing and Community Development with appropriate certifications, as authorized and required by the Housing and Community Development Act of 1974, as amended, and the National Affordable Housing Act of 1990, as amended; and providing for an effective date. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Resolution 2017 Exhibit 3 - Action Plan 2017 Exhibit 4 - CDBG and HOME Budget Information H. ID 17-687 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the purchase of liquid caustic soda for City of Denton Water Treatment facilities as awarded by the Buy Board Cooperative Purchasing Network Contract 4 526-17; providing for the expenditure of funds therefor; and providing an effective date (File 6458- awarded to Petra Chemical Company in the one year not -to -exceed amount of $260,000). The Public Utilities Board recommends approval (7-0). Attachments: Exhibit 1 -Agenda Information Sheet Exhibit 2 -Price Comparison Exhibit 3 -Buy Board Contract Pricing Exhibit 4 -PUB Draft Minutes Exhibit 5-Ordinance.doc L ID 17-693 Consider adoption of an ordinance approving a temporary license agreement between the City of Denton and Jagoe-Public Company for temporary access and use of a 2 acre tract of land situated in the 3800 block of F.M. Highway 1830 (Country Club Road), authorizing the City Manager to execute the agreement; and providing an effective date. (Temporary contractor office and staging area for FM Hwy. 1830 shoulder widening & base repair TxDOT project) Attachments: Exhibit 1 - Agenda Information Sheet - Jagoe Temp Use License - FM 1830 Exhibit 2 - Location Map - Jagoe Temp Use License - FM 1830 Exhibit 3 - Site Map - Jagoe Temp Use License - FM 1830 Exhibit 4 - Ordinance - Jagoe Temp Use License - FM 1830 I ID 17-700 Consider approval of the minutes of May 23 and 30, 2017. City ofDenton Page 6 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Attachments: Exhibit 1 - May 23, 2017 Minutes Exhibit 2 - May 30, 2017 Minutes K. ID 17-729 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the installation of a Splash Park at the City of Denton Carl G. Young Park located at 327 South Wood Street as awarded by the Buy Board Cooperative Purchasing Network Contract# 512-16; providing for the expenditure of funds therefor; and providing an effective date (File 6450 -awarded to Kraftsman Commercial Playgrounds and Water Parks, Inc. in the not -to -exceed amount of $252,093.97). Attachments: Exhibit 1 -Agenda Information Sheet Exhibit 2 -Price Comparison Exhibit 3 -Quote Exhibit 4 -Ordinance Exhibit 5 -Contract 5. ITEMS FOR INDIVIDUAL CONSIDERATION — CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS A. ID 17-653 Consider adoption of an ordinance of the City of Denton ("City") finding that a public use and necessity exists to acquire fee simple title to a 0.119 acre tract of land situated in the Eugene Puchalski Survey, Abstract No. 996, in the City of Denton, Denton County, Texas ("Property Interests"), for the public use of expansion, construction, maintenance, and operation of an electrical transmission line, ancillary facilities, and structures; authorizing the City Manager, or his Designee, to acquire the Property Interests by agreement including making all offers required by law; authorizing the use of power of eminent domain to condemn the Property Interests if an agreement cannot be reached; and authorizing the City Attorney, or his Designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funds; making findings; providing a savings clause; and providing an effective date. Attachments: Exhibit 1 Agenda Information Sheet Exhibit 2 Ordinance Exhibit 3 Map Exhibit 4 Motion Exhibit 5 Appraisal Exhibit 6 Presentation 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 17-632 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the manufacturing and installation of Wayfinding Signage for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6275C -awarded to Color -Ad Inc. in the not -to -exceed amount of $599,385.00 City ofDenton Page 7 Printed on 61212017 City Council Meeting Agenda June 6, 2017 Attachments: Exhibit 1 -Agenda Information Sheet Exhibit 2 -Evaluation and Ranking Exhibit 3 -Ordinance Exhibit 4 -Contract Exhibit 5 -Vehicular and Pedestrian Menu of Sign Types Exhibit 6 -Vehicular and Pedestrian Signs Location Maps Exhibit 7 -Large Gateway Menu of Sign Types Exhibit 8 -Staff Presentation.pdf B. ID 17-695 Hold a discussion and give staff direction on the recruitment process for a new City Attorney. Attachments: Exhibit 1 Agenda Information Sheet C. ID 17-734 Consider approval of the appointment of Council Member John Ryan as an alternate member of the Regional Transportation Council. Attachments: Exhibit 1 - Agenda Information Sheet -RTC 7. PUBLIC HEARINGS A. Z16 -0030b Hold a public hearing and consider adoption of an ordinance to rezone approximately 0.4 acre from a Downtown Residential 1 (DR -1) District to a Downtown Residential 2 (DR -2) District. The property is generally located on the west side of Neff Street, 175 feet north of Greenlee Street in the City of Denton, Denton County, Texas; adopting an amendment to the City's official zoning map; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (4-2). (Z16-0030) Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Staff Analysis Exhibit 3 - Site Location Aerial Map Exhibit 4 - Existing Zoning Map Exhibit 5 - Future Land Use Map Exhibit 6 - Permitted Use Comparison Exhibit 7 - Proposed Zoning Map Exhibit 8 - Public Notification Map and Response Exhibit 9 - Presentation Exhibit 10 - Planning and Zoning Commission Meeting Minutes Exhibit 11 - Draft Ordinance B. Z17 -0007a Hold a public hearing and consider adoption of an ordinance to rezone approximately 0.862 acres from a Neighborhood Residential Mixed Use (NRMU) District to a CM -G District. The subject property is generally located on the north side of Hobson Lane, approximately 340 feet east of Country Club Road. The Planning and Zoning Commission voted 6 -Oto approve the request. (Z17-0007, City ofDenton Page 8 Printed on 61212017 City Council Meeting Agenda June 6, 2017 CST Corner Store). Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Staff Analysis Exhibit 3 - Site Location Map Exhibit 4 - Existing Zoning Map Exhibit 5 - Future Land Use Map Exhibit 6 - Proposed Zoning Map Exhibit 7 - Permitted Uses Table Exhibit 8 - Presentation Slides Exhibit 9 - Public Notification Map and Responses Exhibit 10 - Planning and Zoning Commission Meeting Minutes Exhibit 11 - Draft Ordinance 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 , 2017 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM AND COUNCIL CHAMBERS ARE ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800 -RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. City ofDenton Page 9 Printed on 61212017 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN File #: ID 17-592, Version: 1 Legislation Text AGENDA CAPTION Receive a report and hold a discussion on the Denton Development Code (DDC) Update. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton City Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services CM: Todd Hileman DATE: June 6, 2017 SUBJECT Receive a report and hold a discussion on the Denton Development Code (DDC) Update. BACKGROUND In early 2013, Clarion Associates (Clarion) began working with the Planning Division on a project to review and update the City's land development code. The project was designed to focus on targeted code improvements that could be completed while the City also focused on a related project to develop a new citywide comprehensive plan. The goal was to provide an improved land development code that would be a foundation upon which to implement the new comprehensive plan (Denton Plan 2030). The code updates included a general reorganization and reformatting of the Denton Development Code (DDC), as well as an assessment and update of the code in targeted areas. The initial assessment report was completed in November 2013 and a draft version of the reorganized and reformatted DDC, as well as proposed text for development review procedures were completed in 2014. After receiving the first round of deliverables, this project was placed on hold to allow staff to dedicate resources to the Denton Plan 2030 initiative. However, in spring 2016, the project was reinitiated and Clarion was directed to conclude the previous task and to prepare a revised scope of work to complete three central tasks to: Revise districts and uses; 2. Draft new development and design standards; and 3. Facilitate public involvement and adoption of the new development code. In the final phase of this project, the primary goals are to address inefficiencies and disconnects that have resulted from the current land development code and to undertake a broad range of substantive updates to address a variety of issues raised in the Denton Plan 2030 and the City's Strategic Plan. This phase will build on Clarion's earlier work by using the draft version of the reorganized and reformatted DDC as a foundation. The project has also been expanded to allow for over 400 consultant hours to prepare for and conduct public outreach. The drafting of the revised code will be completed in several phases, or modules as outlined below: • Module 1. Zoning Districts, Uses and General Provisions • Module 2. Development and Design Standards • Module 3. Administration and Procedures The anticipated schedule for the public draft is as follows; • Module 1. Zoning Districts, Uses and General Regulations — June 2017 • Module 2. Development and — September 2017 • Module 3 - October 2017 • Consolidated Draft — December 2017 The purpose of this work session is to provide a briefing for the City Council regarding the work plan and status of the DDC Update. At the work session, Clarion Associates will also provide an overview of the draft regulations that will be included in Module 1: Zoning Districts and Use Regulations. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was presented to the Development Code Review Committee at its November 21st 2016 meeting, where it received full support from the committee. Funding for this project was approved by City Council in the FY2015-FY2016 operating budget for an amount up to $250,000. A professional services agreement for the next phase of this project was approved by City Council on December 14, 2016. 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 Clarion Scope of Services Respectfully submitted: Munal Mauladad Director of Development Services Prepared by: Shandrian Jarvis, AICP Development Review Committee Administrator uuuou uuuuru� � Iola Clarion Associates 303.830.2890 621 17th Street, Suite 2250 Denver, CO 80293 www.clarionassociates.com MEMORANDUM TO: City of Denton FROM: Matt Goebel and Tareq Wafaie, Clarion Associates DATE: November 29, 2o16 RE: PSA 6233: Denton Development Code Rewrite - Revised Scope of Work Background In early 2013, Clarion Associates began working with the City of Denton on a project to review and update the City's Development Code. The project was designed to focus on targeted code improvements that could be completed while the City also focused on a separate project to develop a new citywide comprehensive plan. The expectation was that an improved development code ultimately would provide a strong foundation upon which to implement the new city plan. The code updates included a general reorganization and reformatting of the Development Code, as well as an assessment and update of the code in targeted areas, such as review procedures and barriers to infill development. The initial Assessment Report was completed in November 2013. In 2014, Clarion submitted two major deliverables: 1) A draft reorganized and reformatted Denton Development Code (DDC), and 2) a draft of the reformatted DDC with substantially revised procedures. Each of these documents was submitted as a "staff draft," meaning that core staff would review the drafts and provide consolidated comments to Clarion, and Clarion would then make edits prior to issuing a public version of those documents. Staff comments were not received immediately, however, due to staff turnover and other City priorities, and public drafts were not prepared. In the spring of 2o16, new planning staff reinitiated the code project by providing initial comments on both of the 2014 staff drafts. Clarion prepared a consolidated version of those two draft deliverables based on the initial staff feedback. In May 2o16, the City directed Clarion to conclude work on the outstanding project and prepare a new scope for additional edits to the draft DDC. The goal of the new project is to undertake a broad range of substantive updates to address a variety of issues raised in the new comprehensive plan and other City policies. The project will build on Clarion's earlier work by using the draft reorganized and reformatted DDC as a foundation for drafting, but the updates will address a broader range of issues than intended under the earlier project. This memorandum provides a draft scope for the City's consideration. All elements are open to discussion and modification. oq� ) QO �.� 131anning I Zoning & I..and Use I Deal I ngnq: I duunq:aiinallniliq:y & � nili finny Memo, Jarvis, p. 2 Task is Project Initiation 1.1 Kick -Off Meetings The Clarion team will facilitate a project initiation meeting with city staff in Denton to discuss overall project goals and finalize the project work plan, schedule, and public participation strategy. As part of the same trip, Clarion will also meet with the Planning and Zoning Subcommittee to introduce the project, reviewthe overall project scope, and discuss the subcommittee's role. 1.2 Public Participation Strategy This work program proposes public involvement through regular meetings with the Planning & Zoning Commission Subcommittee during each of the incremental tasks of the update project, and periodically with other stakeholders and the general public on an as -needed basis; city staff conducts additional follow-up meetings as necessary. Specific tasks include: Regular meetings with the Planning and Zoning Commission Subcommittee. Clarion will meet with the P&Z Subcommittee at the project kick-off trip, and to present each module as described in Task 2, and at the end of the project to present the consolidated new DDC. (Five meetings total). Regular reports to appointed and elected officials. To keep appointed and elected officials informed about the overall project status and specific proposed policy changes, Clarion will provide brief memorandums and/or "top -ten" lists of issues to the Planning and Zoning Commission and/or the City Council for each of the three modules of the draft DDC as described in Task 2. In addition, Clarion will be available to make brief presentations to these groups during the Task 2 drafting process if they are scheduled to coincide with trips to present to the P&Z Subcommittee. In addition, Clarion will present the draft DDC to both groups as part of the adoption meetings described in Task 3. (Five meetings total). Project materials posted on the city's website. Clarion will provide regular updates on upcoming meetings and as new draft materials become available for public review. Clarion will deliverthese materials to staff for posting on the city's website. PowerPoint presentations used at all public meetings will also be posted on the city's website. Other social media platforms (e.g., Facebook, Twitter, Linkedln, etc.) can be used at the city's discretion to link to the city's website when drafts are available for review and to advertise upcoming events related to the project. [OPTIONAL] Additional public meetings at important milestones during the process. As an optional task at the city's discretion, Clarion can prepare for and facilitate additional public meetings not included in this scope of work. This would include development of meeting materials (such as handouts summarizing changes from the current code to the new DDC, brief memorandums with proposed recommendations for each module, and PowerPoint presentations) for all other public meetings as indicated in this proposed scope of work. Clarion will discuss this proposed public participation strategy with staff during the project kick-off meeting, and summarize the agreed-upon approach in a two- to three-page report following that meeting. Task i Deliverables: Kickoff meetings; public participation strategy re ....................................................................................................................................................................................................................................................................................................................................................................................... Task i Trips: One two-day trip by Goebel and Wafaie Memo, Jarvis, p. 3 Task is Draft New Denton Development Code Following the kick-off meetings, the Clarion team will begin drafting the new Denton Development Code. The drafts will be organized according to an outline to be provided by staff. The drafts will emphasize the use of graphics, tables, and charts to clearly explain zoning and land use concepts. Each draft will include commentary and footnotes to explain changes from the current DDC to the new draft regulations, including rationale behind new provisions. 2.1 Staff Draft Denton Development Code Amendments to the administration and procedures are currently underway by staff and will not require significant substantive work by Clarion. Our understand is that these documents will build on and be consistent with the Microsoft Word files already developed by Clarion in the reorganized/reformatted DDC (in particular, consistent use of Word styles). At staff's request, Clarion will review the proposed table of procedures and the respective decision-making roles and provide feedback to staff. A limited number of hours for Clarion review is included in the project budget forthis task. We propose dividing the remainder of the drafting into two modules (described below). The specific order of the modules should be discussed during project kickoff and will be based on the outline to be provided by staff. This module will include drafts for a new lineup of zoning districts (new or existing, plus dimensional standards) and the uses allowed for each district. It also will address nonconformities and general provisions (e.g., the overall purpose andjurisdiction of the DDC). The new lineup of zoning districts will focus on implementation of the future land use map (in the Denton Plan 2030) and additional feedback from staff. In the earlier project phase, we provided a table of allowed uses for staff review. Staff feedback on that table will give Clarion and staff a head start on revisions, resulting in improved project efficiency and potential cost savings. Clarion will initiate this first module by preparing a brief (5 pages maximum) memorandum highlighting proposed changes to the districts, uses, and dimensions. As background to assist in preparing this memo, we will review key background documents, such as the Denton Plan 2030, and identify specific policies and strategies that can be implemented through revisions to the districts and uses in the DDC. We will submit the memorandum to staff for review and schedule a conference call to discuss the memo. Staff will prepare one set of consolidated written comments identifying any additions or changes to the recommendations set forth in the memorandum. 2.1.0 Module 2 ® DeveloDment and Design Standards This second and final module will include standards that address the layout, look, and feel of new development and redevelopment, such as landscaping, parking, building design, subdivision design, floodplain regulations, and lighting. We understand that Denton is leading several staff - initiated amendments to the development and design standards, including landscaping and tree - preservation; building material standards; parking and loading standards; and planned development district standards. Clarion's work will include drafts of any remaining content areas based on the outline provided by staff. Clarion will coordinate the new lineup of zoning districts in the first module with any overlapping information for the planned development districts as it becomes available. Memo, Jarvis, p. 4 As with the first module, Clarion will initiate this module by preparing a brief (5 pages maximum) memorandum highlighting the key issues related to development and design standards. We will also identify key policies and strategies from the Denton Plan 2030 to be implemented in this module. We expect that infill and redevelopment will play a key role in evaluating the performance of existing regulations and any new provisions proposed in the draft. The draft will also address neighborhood protection and compatibility as a key component. We will submit the memorandum to staff for review and schedule a conference call to discuss the memo. Staff will prepare one set of consolidated written comments identifying any additions or changes to the recommendations set forth in the memorandum. We recommend including applicable definitions in each module, building up to a final, consolidated list of definitions. Illustrations, tables, and other graphics will be included with the drafts. We have budgeted for approximately 50 graphics in this scope of work. Clarion can prepare additional graphics on a time -and -expenses basis. Often we will include place holders for graphics in staff drafts so that we do not commit resources to preparing graphics that staff may not deem necessary or helpful. Some examples of Clarion's graphics are included with this memo. For each module, the staff draft will be created and circulated for review by key staff to checkthe factual accuracy and feasibility of recommended changes. Each staff draft will be accompanied by a cover memorandum that summarizes the major new features of the draft, significant changes from current provisions, and explanations of the new material. While staff is reviewing the first module, the team will begin drafting the second module. Following this schedule, drafting and staff review proceeds in an efficient manner that maintains project momentum. 2.2 Public Draft Denton Development Code Following one round of consolidated written staff comments on each module, the team will make revisions and prepare public review drafts of each module for distribution to the P&Z Subcommittee, key stakeholders, and the general public. Clarion will facilitate a work session with the Subcommittee to present each module of the Public Draft DDC and solicit feedback. We recommend one meeting per module with the P&Z Subcommittee (to which the general public is invited). The Clarion team will facilitate the meetings and prepare materials and presentations for such meetings, seeking staff review and input before finalizing them. We anticipate staff will attend and provide brief introductions and participate in the majority of the public meetings. 2.3 Consolidated Draft Denton Development Code Based on written feedback consolidated by staff from the P&Z Subcommittee, other stakeholders, and the general public, we will revise the two draft modules, as well as the administration materials prepared by staff, to create a Consolidated Draft Denton Development Code. We recommend two meetings on this draft, including one P&Z Subcommittee meeting and one general public meeting on the same trip. Meetings will focus on major changes from the prior draft modules. Our project budget assumes that Clarion representatives will lead the development of all meeting materials (including a PowerPoint presentation) and will present the materials in person at these meetings. 2.4 Adoption Draft Denton Development Code After receiving comments on the Consolidated Draft, the Clarion team will revise the document and create a final draft DDC to be carried forward into the adoption process. This draft will include final versions of all illustrations, charts, and tables. Memo, Jarvis, p. 5 2.5 Facilitate Additional Public Meetings In addition to the meetings identified above, Clarion will facilitate three public meetings and presentations on zoning -related issues throughout the course of the project at staff's discretion. Should a particular topic generate substantial confusion or skepticism, we will address that issue by facilitating a special discussion dedicated to that topic. Examples might include affordable housing, building design standards, transit -oriented development, or parking standards. When the special topics are identified by staff, Clarion will prepare materials for presentation to the community. We will draft presentations for review by staff priorto finalizing them. We expectthat staff will provide brief introductions during the public meetings, and will provide other key updates as necessary. Brief review of administration and procedures summarytable; Staff draft of two modules; Public draft of two modules; Task Deliverables: Presentation of two public draft modules; Consolidated draft of DDC; Presentation of consolidated draft of DDC; Adoption draft of DDC; Three additional public meetinos (topics at staff discretion). Task 2Trips: I Six two-davtripsbvGoebel and Wafaie Task 3: Adoption 3.1 Executive Summary The team will provide the Planning and Zoning Commission and the City Council with the Final Draft Development Code in a form appropriate for their review and consideration for final adoption. To accompany the Final Drafts, Clarion will prepare an Executive Summary that describes the project and the final documents, compares the existing and proposed ordinances, and summarizes all major changes. 3.2 Final Draft Planning and Zoning Commission Work Session and Public Hearing Clarion will facilitate a work session with the Planning and Zoning Commission to present the Final Draft Development Code and solicit feedback. Following the work session, Clarion will make one round of edits to the draft code based on feedback received. Clarion will then prepare and present the revised document at a public hearing. Clarion will then make one additional round of edits based on feedback received at the public meeting, based on consolidated written direction provided by staff. 3.3 Final Draft City Council Work Session and Public Hearing Following the Planning and Zoning Commission public hearing and subsequent revisions, Clarion will facilitate a work session with the City Council to present the draft code and solicit feedback. Following the work session, Clarion will make one round of edits to the draft code based on feedback received. Clarion will then prepare and present the document at a public hearing. 3.4 Floating Meeting Clarion will facilitate an additional public meeting at staff's discretion. This meeting may include an additional meeting or hearing with the Planning and Zoning Commission, City Council, or any other public meeting at the city's request. Feedback from this floating meeting will be addressed in the final adopted draft in the next task. Memo, Jarvis, p. 6 3.5 Final Denton Development Code Based on comments and direction from the City Council, the public, and staff, as summarized in consolidated written direction provided by staff, we will create the final adopted draft of the new Denton Development Code for the city's files. This final draft will be prepared to live on the City of Denton's website in a user-friendly and searchable format. We can also discuss with staff other opportunities for developing an interactive web format for the new code. 3.6 Denton DDC Summary PowerPoint Following the final adopted draft of the new Denton Development Code, Clarion will prepare a PowerPoint presentation that walks through the changes from the old code to the new DDC and highlights some of the new features of the DDC. Clarion will walkthrough the presentation with staff using GoToMeeting or a similar platform as part of this proposed scope of work. Clarion will be available to facilitate additional in-person training for staff and/or other stakeholders upon request on a time - and -expenses basis. Executive summary of DDC; Presentations of final drafts of the DDC; Task Deliverables: Final DDC; Summary PowerPoint; [optional] in-person training at staff discretion .......................................................................................................................................................................................................................................................................................................................................................................................................................... Task i Trins: Five two-dav trios by Goebel and Wafaie Budget A project budget, broken down by tasks, is summarized on the following page. It includes all professional fees, travel, and other reimbursable expenses. This cost estimate is based on the firm's extensive experience with similar code rewrite projects. All numbers are preliminary and open to discussion and negotiation. We are flexible and committed to developing a work plan, division of labor, and budget consistent with the city's resources and objectives. Resumes for Clarion staff are included with this memo. Memo, Jarvis, p. 7 City of Denton, Texas - Denton Development Code (DDC) Rewrite - November 2016 Wre'dor Msdtiate TOTAL Hourly Rate $200 $95 $85 $65 Task 1. Project Initiation 1.1 Kick-off meetings (incl travel) 16 16 $4,720 1.2 Public participation strategy (addl time in subsequent tasks) 2 2 $590 Hours is is 0 0 36 Labor Costs $3,600 $1,710 $0 $0 $5,310 Expenses $1,000 $800 $0 $0 $1,800 Task Total $7,110 Task 2. Draft New Denton Development Code 2.1A Staff draft Denton Development Code 8 8 0 0 $2,360 2.1B Staff draft Denton Development Code 60 135 40 60 $32,125 2.1C Staff draft Denton Development Code 60 135 40 60 $32,125 2.2 Public draft Denton Development Code and 2 presentations 60 100 30 40 $26,650 2.3 Consolidated draft Denton Development Code 20 60 24 $11,260 2.4 Adoption draft Denton Development Code and presentations 24 24 16 $8,120 2.5 Facilitate three additional public meetings 36 72 $14,040 Hours 268 534 110 200 1,112 Labor Costs $53,600 $50,730 $9,350 $13,000 $126,680 Expenses $6,000 $4,800 $0 $0 $10,800 Task Total $137,480 Task 3. Denton Development Code Adoption 3.1 Executive summary 4 8 4 $1,820 3.2 Final draft P&Z work session and public hearing 32 40 8 $10,720 3.3 Final draft City Council work session and public hearing 32 40 $10,200 3.4 Floating meeting 16 20 $5,100 3.5 Final Denton Development Code 8 32 40 $7,240 3.6 DDC summary PowerPoint 4 8 $1,560 Hours 96 148 0 52 296 Labor Costs $19,200 $14,060 $0 $3,380 $36,640 Expenses $5,000 $4,000 $0 $0 $9,000 Task Total $45,640 TOTAL $190,230 Memo, Jarvis, p. 8 Project Schedule We have outlined a process timeline below that we believe works well for a project of this scale. We are happy to further discuss alternatives with you at the discretion of staff. Dates are based on a January 2017 start date; to be adjusted upon actual kick-off. 2017 2018 Task 1— Project Initiation 1.1 Kick-off meetings & 1.2 Pubic participation strategy Task 2 — Draft New Denton Development Code 2.1 Staff draft DDC Administration and procedures (staff -led) Module one Module two 2.2 Public draft DDC Module one Module two 2.3 Consolidated draft DDC 2.4 Adoption draft DDC 2.5 Facilitate additional public meetings Task 3 — Adoption 3.1 Executive summary 3.2 Final draft P&Z work session and public hearing 3.3 Final draft City Council work session and public hearing 3.4 Floating meeting 3.5 Final DDC 3.6 DDC summary PowerPoint KEY: P&Z Subcommittee kickoff meeting P&Z Subcommittee meeting with public invited Public meeting(s)/hearing(s) Enc: • Resumes for Clarion staff • Sample graphics DocuSign Envelope ID: 9398410E-2EOE-4EA7-8OA9-6C7E43E4C16A THE STATE OF TEXAS § COUNTY OF DENTON § SECOND AMENDMENT TO CONTRACT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND CLARION ASSOCIATES FILE NO. 5053 THIS SECOND AMENDMENT TO CONTRACT 5053 ("Amendment") by and between the City of Denton, Texas ("City") and Clarion Associates ("Contractor"); The original Agreement provided for Clarion Associates services related to the Denton Development Code Rewrite as is contained in Contract 4 5053 (on file in the Purchasing Office). The initial agreement for the Basic Services — (Exhibit A), was approved on September 11, 2012, in the not -to -exceed amount of $150,000. This was subsequently amended to lower the total not -to -exceed amount to $99,877.35. The CITY deems it necessary to further expand the goods/services provided by CONTRACTOR to the CITY; NOW THEREFORE, Section 2 "Administration and Procedures "Task 2.1.A Draft New DDC", is modified to include the attached Exhibit B. The modification is in the amount of $32,300 with a revised not -to -exceed total of $322,407.35. All other provisions of the contract 5053, as heretofore amended, remain in full force and effect. IN WITNESS WHEREOF, the CITY and the CONTRACTOR, have each executed this Amendment, by and through their respective duly authorized representatives and officers on this date 4/28/2017 RFP 5053 — Amendment 42 Page 1 of 6 DocuSign Envelope ID: 9398410E-2EOE-4EA7-8OA9-6C7E43E4C16A RFP 5053 — Amendment 42 "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation E�% ocuSigned by: By: EAC JODY WORD, CTP BUYER "CONTRACTOR" CLARION ASSOCIATES A Corporation DocuSigned by: E85D7VVZ4Z0FEAZA AA cow �� 8/2017 BY . AUTHORIZED SIGNATURE, TITLE Page 2 of 6 DocuSign Envelope ID: 9398410E-2EOE-4EA7-8OA9-6C7E43E4C16A EXHIBIT B uuuuru� � Iola Clarion Associates 303.830.2890 621 17th Street, Suite 2250 Denver, CO 80293 www.clarionassociates.com MEMORANDUM TO: City of Denton FROM: Matt Goebel, Clarion Associates DATE: March 28, 2017 RE: PSA 5053 Amendment 2, Purchase Order 163436: DDC Rewrite (Administration and Procedures) This memorandum summarizes an amendment to the project scope ofworkto provide for Clarion Associates taking the lead in the drafting, review, and presentations of the Administration and Procedures module of the new Denton Development Code. • Task 2.1.A of the Agreement, entitled "Administration and Procedures," is hereby amended by the following: Clarion will take the lead in rewriting this section of the DDC and will prepare a staff draft similar in format and content to the othertwo modules being prepared by Clarion. Following review of the document, staff will prepare one round of consolidated written comments, and Clarion will then prepare a revised draft for public distribution. Clarion will attend one round of meetings in Denton to present the materials. • Total budget amount for this phase is amended by the addition of $32,300 to the project total for additional professional services. • The project timeline for interim deliverables will be amended to allow for drafting and delivery of the documents at the mutual agreement of the City and Consultant. The overall contract deadline of May 30, 2o18, remains the same. age 3 0 6 131anning I Zoning & I..and Use I�cal I ngnq:c duunq:aiinallniliq:y & �cnilicinny N O_ O w D U) U O 0 rtz �_Y � rG1 P„Lu _0 P„Lu P;Lu E N N 0 Q f0 = U � Q (a U C N .' L Q a-+ N i 7 '4+ N C 0- • zz O U(D -p O U 7 N U-)4d"G P z N � z N C O i ' ro O O W; u _,_P V U c -I Q H i cxC) .. N N N O i > C Z) • N i � f0 f6 i � i N Q u- 4� � O 1 (D Wtin Q) a J L v Q E o H H0 W O s H N 0')H N m M U 170 UD. V C Q G 1 i D Vi v G , V cyl. ItA u - Z LL CC 00 m m Ln O u 170 i 170 S H HLu i Grr'Y • :DD r`o4 170 0 LL LL II ” W 0 O N D -dLLI QO z Xv W Po o O w _ C v C O z Z . U 're'INm i i Deis:Uo Q) N% ” N dM Z Z �u ' .� > "% '} Lu Lu+ '� � ��� H �i N170 �i >��� `��� O f6 4. V) O ru + u') r D D . N T MD to +;Lu s a . O v ,. t[ c;Lu _°la ip1 _0 C t0 O � v _C;m P�Lu ¢, M +L 0 N Q > to _1D 7 p �� m O r�0 �1 Q Cla • m 0 Lu to Ol � a-+ i f -O Q)p1 Q ~ co c _0 V Z • ' ~ ~ II co II.JI,.,. v Q m is O` O` Q C Ln Ln v s c„Lu C"la QN 0 ul C N C N N N N z g,,., Q)O E� � O E� N • "�Lu C- N. Q- E N. Q- E O O V C1 C U OV C U OV E v 'N N - N N - N N N N Ln r C Ln C 4.1 �wr Y ¢°V N C >j N i,Lu w„�„, N -O E N -O E Q Q 11) Z Z Z Z • _.la E� O EEO • ¢' 0V , : (D O E v O E v U -0 v Q) L -0 v :U v L _000 G. q ° ° r`o N i r`o NQ Q N ON _Cla S1 Q- f0 LL Q (0 NW QZ 4 ¢1 ro O Q) N��I'd to Q • c C Q) N -O 7 SO N V N C: N O _ j : u U h i O 7 E V— o -0 w v E N r`o � v Q) >_ � i :U= � v 7 V N + O — w Ln v � .L c E v O G..> (a -0 M O O) in fSJ- Q :E �n 41 O O L 41 Ln p -O -O c: bA X C O U1 O C AI U U Q Q N �,�', .O Lu LL � LL LL LL m Ln N ;4N N m O Nift L!'1 ' N N N°� N m m Ul m Z m m N T N O_ O N C W C: _D U) U O 0 M ,T., Certificate Of Completion Envelope Id: 9398410E2EOE4EA780A96C7E43E4Cl6A Subject: Please DocuSign: 5053- Clarion Associates -Amendment #2.pdf Source Envelope: Document Pages: 6 Signatures: 2 Supplemental Document Pages: 0 Initials: 0 Certificate Pages: 5 AutoNav: Enabled Payments: 0 Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original Holder: Jody Word 4/28/2017 7:46:16 AM jody.word@cityofdenton.com Signer Events Signature Matt Goebel, AICP o Sg dby: 4A4 Gocdc� hiC P mgoebel@clarionassociates.com Sso7F4-of-611 . Security Level: Email, Account Authentication (Optional) Using IP Address: 38.140.32.78 Electronic Record and Signature Disclosure: Accepted: 4/28/2017 8:52:46 AM ID:be59de4a-120a-4b07-b8b4-7c37b1a555c8 Jody Word pll—Sig-d by: jody.word@cityofdenton.com &11 0"d" Buyer 296E603A17BB493 . City of Denton Security Level: Email, Account Authentication Using IP Address: 129.120.6.150 (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign 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 Shandrian Jarvis Shandrian.Jarvis@cityofdenton.com OPIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Status: Completed Envelope Originator: Jody Word jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 4/28/2017 7:49:51 AM Viewed: 4/28/2017 8:52:46 AM Signed: 4/28/2017 8:53:52 AM Sent: 4/28/2017 8:53:54 AM Viewed: 4/28/2017 9:08:54 AM Signed: 4/28/2017 9:09:06 AM Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 4/28/2017 9:09:08 AM Viewed: 5/3/2017 6:51:39 AM Carbon Copy Events Status Timestamp Julia Winkley Sent: 4/28/2017 9:09:09 AM julia.winkley@cityofdenton.com COPIED Viewed: 5/2/2017 2:13:47 PM Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Jennifer Bridges Sent: 4/28/2017 9:09:09 AM jennifer.bridges@cityofdenton.com OPIED Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 4/28/2017 9:09:09 AM Certified Delivered Security Checked 4/28/2017 9:09:09 AM Signing Complete Security Checked 4/28/2017 9:09:09 AM Completed Security Checked 4/28/2017 9:09:09 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 7:25:38 AM Parties agreed to: Matt Goebel, AICP 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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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 IEN' `IN Legislation Text File #: ID 17-667, Version: 1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding Tax Increment Financing Reinvestment Zone Number One (Downtown TIF). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Economic Development CM/ DCM/ ACM: Bryan Langley DATE: June 6, 2017 SUBJECT Receive a report, hold a discussion, and give staff direction regarding Tax Increment Financing Reinvestment Zone Number One (Downtown TIF). BACKGROUND As authorized by Chapter 311 of the Texas Tax Code, a Tax Increment Financing Reinvestment Zone (TIF) is a tool that local governments can use to publicly finance needed structural improvements and enhanced infrastructure within a defined zone. These improvements are usually undertaken to promote the viability of existing businesses and to attract new commercial enterprises to the zone. An ad valorem valuation base is established in the first year, and the revenue from the increased valuation in subsequent years is allocated into a TIF fund to support eligible projects. Chapter 311 stipulates that an area must meet at least one of a list of criteria in order to be considered for tax increment financing (see Exhibit 7 for full list). The following criteria were used for Denton's Tax Increment Financing (TIF) Reinvestment Zone Number One (Downtown TIF): • It is a contiguous geographic area located wholly within the corporate limits of the municipality. • The area's present condition substantially impairs 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: o A substantial number of substandard or deteriorating structures o Deterioration of site or other improvements o Inadequate sidewalks or street layout o Conditions that endanger life or property by fire, flooding, or other causes • The proposed project plan includes the use of land in the zone in connection with the operation of a proposed regional commuter or mass transit rail system. At the time of the Downtown TIF's creation, the statute read that a reinvestment zone may not be created if more than 10% of the property in the proposed zone (excluding publicly owned property) is used for residential purposes, which is defined as any property occupied by a house which has less than five living units. The statute now states that a reinvestment zone may not be created if more than 30% of the property in the proposed zone is used for residential purposes. On December 7, 2010, the City Council passed Ordinance No. 2010-316, which established the Downtown TIF. It took effect on January 1, 2011, and the City of Denton is the sole participating jurisdiction. On August 16, 2011, Council passed Ordinances No. 2011-128 and 2011-129, the Downtown TIF Project Plan and Finance/Feasibility Plan, respectively. The plans define the boundaries, scope, feasibility, and projects that may be funded by the TIF. On August 5, 2014, Council passed Ordinance No. 2014-221 approving the following amendment to Exhibit D of the Project Plan: "Pursuant to the Texas Local Government Code, section 272.001, the City of Denton may utilize City -owned property that is located in a reinvestment zone to facilitate economic projects which the City and TIF Board deem appropriate and desirable. The City may acquire, lease, sell or otherwise transfer property to accomplish the public purpose of economic development that is consistent with the Project Plan. Such projects may include public-private partnerships, transit -oriented developments, or the recruitment of specific industries including, but not limited to, hi -tech or emerging technology companies, local start-up businesses, artisan or "maker" industries, the creative sector, bakeries, microbreweries, micro -distilleries, wineries, grocery stores, or other industries that the TIF Board and the City Council deem desirable." The Downtown TIF Board members are: Chris Watts and Kevin Roden (two City Council members), Bob Moses and Virgil Strange (two owners of property located within the zone), Marty Rivers and Hank Dickenson (two members of the Denton Chamber of Commerce Board of Directors), and Melissa Lenaburg (a qualified voter in the City of Denton). FISCAL INFORMATION The Downtown TIF is set to terminate on December 31, 2041, or when the budget of $24.8 million has been collected. The percentage of the increased valuation allocated to the TIF fund is as follows: Years 1-5 100% Years 6-10 95% Years 11-20 90% Years 21-30 85% Estimated project costs are as follows: PROJECT ESTIMATED COST Parking / Transportation $8.0 million Complete Streets $7.9 million Support for Downtown Projects $4.9 million Utility / Drainage Improvements $4.0 million TOTAL $24.8 million On September 15, 2015, the City Council passed Ordinance No. 2015-300 approving a Chapter 380 incentive grant of $76,000 for five years ($380,000) for the Railyard development at 608 E. Hickory. To date, two payments have been made. As of September 30, 2016, the actual tax revenue that has gone into the Downtown TIF Fund is $1,293,429. The Downtown TIF fund balance was $768,764. The projected FY 16-17 end -of year fund balance is $1.15 million. 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 Exhibit 1 — Agenda Information Sheet Exhibit 2 — Ordinance No. 2010-316 Exhibit 3 — Ordinance No. 2011-128 Exhibit 4 — Ordinance No. 2011-129 Exhibit 5 — Ordinance No. 2014-221 Exhibit 6 — Downtown TIRZ (TIF) Value History Exhibit 7 — Secs. 311.005 and 311.006 Texas Tax Code Exhibit 8 — Presentation Respectfully submitted: Caroline Booth Director of Economic Development sAlegahour documents\ordinances110\tif ordinance. doc ORDINANCE NO. 2010-316 AN ORDINANCE DESIGNATING AND DESCRIBING THE BOUNDARIES OF A TAX INCREMENT FINANCING REINVESTMENT ZONE FOR THE DOWNTOWN DISTRICT OF DENTON, TEXAS; ESTABLISHING THE DURATION OF THE ZONE; ESTABLISHING A TAX INCREMENT FUND; ESTABLISHING A BOARD OF DIRECTORS FOR THE TAX INCREMENT FINANCING REINVESTMENT ZONE; MAKING CERTAIN FINDINGS AND OTHER MATTERS RELATED THERETO; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas, (the "City"), desires to promote the development of the Downtown District of the City of Denton by the creation of a Tax Increment Financing Reinvestment Zone, as authorized by the Tax Increment Financing Act, Chapter 311 of the Texas Tax Code, Vernon's Texas Codes Annotated (the "Act"); and WHEREAS, the City has called a public hearing to hear public comments on the creation of the proposed Tax Increment Financing Reinvestment Zone and its benefits to the City and the property in the proposed Tax Increment Financing Reinvestment Zone; and WHEREAS, notice of such public hearing was published in the Denton Record - Chronicle, a daily paper of general circulation in the City, such publication date being not later than seven (7) days prior to the date of the public hearing; and WHEREAS, such hearing was convened at the time and place mentioned in the published notice, on the 7th day of December, 2010, at 6:30 p.m., in the Council Chambers of the City of Denton, Texas; and WHEREAS, the City, at such hearing, invited any interested person, or his/her representative, to appear and speak for or against the creation of the Tax Increment Financing Reinvestment Zone, the duration of the Tax Increment Financing Zone, the boundaries of the proposed Tax Increment Financing Reinvestment Zone, whether all or part of the territory which is described in Exhibit "A" attached hereto and depicted on the map attached hereto as Exhibit "B" should be included in such proposed Tax Increment Financing Reinvestment Zone, the concept of tax increment financing and the appointment of a board of directors of the proposed Tax Increment Financing Reinvestment Zone; and WHEREAS, all owners of property located within the proposed Tax Increment Financing Reinvestment Zone and all other taxing units and other interested persons were given a reasonable opportunity at such public hearing to protest the creation of the proposed Tax Increment Financing Reinvestment Zone and\or the inclusion of their property in such Tax Increment Financing Reinvestment Zone; and WHEREAS, the proponents of the Tax Increment Financing Reinvestment Zone offered evidence, both oral and documentary, in favor of all of the foregoing matters relating to the creation of the Tax Increment Financing Reinvestment Zone, and opponents of the Tax Increment Financing Reinvestment Zone were given the opportunity to appear to contest creation of the zone, after which the hearing was closed; NOW, THEREFORE, sAlegallour documentslordinances1101tif ordinance.doc THE CITY 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. The City Council, after conducting such hearing and having heard such evidence and testimony, has made the following findings and determinations based on the evidence and testimony presented to it: a) The public hearing on adoption of the Tax Increment Financing Reinvestment Zone has been properly called, held and conducted and that notice of such hearing has been published as required by law and delivered to all taxing units overlapping the territory inside the proposed Tax Increment Financing Reinvestment Zone. b) Creation of the proposed Tax Increment Financing Reinvestment Zone with boundaries as described in Exhibits "A" and `B" will result in benefits to the City, its residents, and property owners, in general, and to the property, residents and property owners in the Tax Increment Financing Reinvestment Zone. c) The Tax Increment Financing Reinvestment Zone, as defined in Exhibits "A" and "B", meets the criteria for the creation of a Tax Increment Financing Reinvestment Zone set forth in the Act in that: (i) It is a contiguous geographic area located wholly within the corporate limits of the City. (ii) 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: a. A substantial number of deteriorated, or deteriorating structures; b. The deterioration of site or other improvements; c. The area has a predominance of defective or inadequate sidewalks or street layout; and/or d. Conditions that endanger life or property by fire or other causes, such as flooding, and other factors. (iii)The proposed project plan includes the use of land in the zone in connection with the operation of a proposed regional commuter or mass transit and rail system. d) That 10 percent or less of the property in the proposed Tax Increment Financing Reinvestment Zone, excluding property that is publicly owned, is used for residential purposes, which is defined in the Act as any property occupied by a house which has less than five living units. e) The total appraised value of all taxable real property in the proposed Tax Increment Financing Reinvestment Zone according to the most recent appraisal rolls of the City, together with the total appraised value of taxable real property in all other existing Page 2 sAlegahour documents\ordinances\10\tif ordinance.doc Tax Increment Financing Reinvestment Zones within the City, according to the most recent appraisal rolls of the City, does not exceed 15 percent of the current total appraised value of taxable real property in the City and in the industrial districts created by the City, if any. f) The proposed Tax Increment Financing Reinvestment Zone does not contain more than 15 percent of the total appraised value of real property taxable by a county. g) The improvements in the Tax Increment Financing Reinvestment Zone will significantly enhance the value of all taxable real property in the Tax Increment Financing Reinvestment Zone. h) The development or redevelopment of the property in the proposed Tax Increment Financing Reinvestment Zone will not occur solely through private investment in the reasonably foreseeable future. SECTION 3. The City hereby creates a Tax Increment Financing Reinvestment Zone over the area described in Exhibit "A", attached hereto and depicted in the map attached hereto as Exhibit "B", and such Tax Increment Financing Reinvestment Zone shall hereafter be identified as the Tax Increment Financing Reinvestment Zone Number One, City of Denton, Texas, (and also known as the "Downtown Denton Tax Increment Financing Reinvestment Zone", the "Zone", or the "Tax Increment Financing Reinvestment Zone"). SECTION 4. There is hereby established a board of directors for the Zone, which shall consist of seven (7) members. The board of directors of Downtown Denton Tax Increment Financing Reinvestment Zone shall be appointed as follows: a) Seven (7) members shall be appointed by the City Council as provided herein within sixty (60) days of the passage of this ordinance or within a reasonable time thereafter. All members appointed to the board shall meet the eligibility requirements set forth in the Act. The governing bodies of the other taxing units that levy taxes on real property in the Downtown Denton Tax Increment Financing Reinvestment Zone have chosen not to pay any of their taxes into the Tax Increment Fund and have waived their right to appoint members. Board membership shall consist of the following: 1. Two members shall be City Council members. 2. Two members shall be either property owners of property located within the Tax Increment Reinvestment Zone or residents whose primary residence is located within the Tax Increment Reinvestment Zone. 3. Two members shall be either business owners of businesses located within the Tax Increment Reinvestment Zone or a member of the Denton Chamber of Commerce Board of Directors. 4. One member shall be a qualified voter of the City of Denton. b) The terms of the board members shall be two-year terms. A board member may serve no more than three consecutive terms. At the first meeting of the Board of Directors, the board members will draw lots to establish the staggering of terms with three of the Page 3 sAlegal\our documents\ordinances\10\tif ordinance.doc board members serving an initial term of one year. The City Council shall designate a member of the board to serve as chairman of the board of directors, and the board shall elect from its members a vice chairman and other officers as it sees fit. c) The board of directors shall make recommendations to the City Council concerning the administration of the Zone. It shall prepare and adopt a project plan and Tax Increment Financing Reinvestment Zone financing plan for the Zone and must submit such plans to the City Council for its approval. The board of directors shall possess all powers necessary to prepare, implement and monitor such project and financing plans for the Tax Increment Financing Reinvestment Zone as the City Council considers advisable including the submission of an annual report on the status of the Zone. Any powers not herein delegated to the board of directors are specifically reserved to the City Council. SECTION 5. The Zone shall take effect immediately upon passage of this ordinance, and the termination of the Zone shall occur on January 1, 2039, or at an earlier time designated by subsequent ordinance of the City Council in the event the City determines that the Zone should be terminated due to insufficient private investment, accelerated private investment or other good cause, or at such time as all project costs and tax increment bonds, if any, and the interest thereon, have been paid in full. The base tax value within the Zone is established as of January 1, 2010. SECTION 6. The Tax Increment Base for the Zone which is the total appraised value of all taxable real property located in the Zone, is to be determined as of December 31, 2010, the year in which the Zone was designated a Tax Increment Financing Reinvestment Zone. SECTION 7. Pursuant to Section 311.013(1) of the Tax. Code, the City hereby determines that the following portions of the tax increment produced by the city of Denton shall be paid into the tax increment fund for the reinvestment zone: Years 1— 5 100% Years 6 —10 95% Years 11 — 20 90% Years 21 — 30 85% SECTION 8. There is hereby created and established a Tax Increment Fund for the Zone which may be divided into such sub -accounts as may be authorized by subsequent resolution or ordinance, into which all Tax Increments, less any of the amounts not required to be paid into the Tax Increment Fund pursuant to the Act, are to be deposited. The Tax Increment Fund and any sub -accounts are to be maintained in an account by the City and shall be secured in the manner prescribed by law for funds of Texas cities. In addition, all revenues from the sale of any tax increment bonds and notes hereafter issued by the City, revenues from the sale of any property acquired as part of the tax increment financing plan and other revenues to be dedicated to and used in the Zone shall be deposited into such fund or sub -account from which money will be disbursed to pay project costs for the Zone or to satisfy the claims of holders of tax increment bonds or notes issued for the Zone. SECTION 9. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such Page 4 sAlegahour documentslordinances1101tif ordinance.doc section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 10. This Ordinance shall become effective immediately upon its passage and approval. 4 PASSED AND APPROVED this the day of , 2010. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: L Page 5 EXIEIIBIT A CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE No. 1 BOUNDARY DESCRIPTION Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot 1; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, A 1184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, At 184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract At 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract At 184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, AI 184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, At 184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; Denton, Boundary Description 051710 6!8120(0 Page I oft THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. Denton, Boundary Description 051710 6/8/2010 Page 2 of 2 Wr W. FILE REFERENCE FORM 1 2011-128 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Amendment to the Project Plan - Ordinance No. 2014-221 08/05/14 JR sAlegahour documentslordinances1111tifproject plan.doc ORDINANCE NO. 2011-128 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING THE PROJECT PLAN FOR THE TAX INCREMENT REINVESTMENT ZONE NUMBER 1 (DOWNTOWN TIF); AND DECLARING AN EFFECTIVE DATE. WHEREAS, on the 7th day of December, 2010, the City Council of Denton, Texas (the "City") established the Tax Increment Finance Zone Number One (Downtown TIF) (the "Zone") as authorized by Chapter 311 of the Texas Code (the "Act"); and WHEREAS, as authorized by section 311.010 of the Act, on March 25, 2011, the Board of Directors of the Zone voted to approve the Project Plan, which is attached hereto as Exhibit "A" and recommended the Project Plan be approved by the City Council; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton, Texas, hereby approves said Project Plan for the Downtown TIF, which is attached and made a part by reference herein. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETAW BY: APPIaEDA TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: PROJECT PLAN — DENTON TIF NO. 1 PROJECT PLAN December 2010 Tax Increment Financing Reinvestment Zone No. I City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972-661-1973 schcli(&.swbell.net PROJECT PLAN — DENTON TIF NO. 1 The City of Denton, Texas proposes to establish a Tax Increment Financing Reinvestment Zone ("TIF") for the purpose of dedicating the increase in tax revenue generated within the TIF to provide funds for public infrastructure to encourage accelerated development and redevelopment in the downtown area of the City. The TIF consists of approximately 225.73 acres and is more fully described in Project Plan Exhibit A. The City is creating this TIF to encourage accelerated development and redevelopment in this area of the City in an effort to stimulate new higher value, higher density development which would benefit and be incentivized from the proposed public infrastructure improvements. It is expected that the TIF will exist for thirty (30) years or the date when all project costs are paid, whichever comes first. As set forth in Section 3 11.0 11 of the Tax Increment Financing Act of the Texas Tax Code Ann., the Project Plan for Tax Increment Financing Reinvestment Zone No. 1, Denton, Texas must and does include the following elements: 1. A map showing existing uses and conditions of real property in the TIF and a map showing proposed improvements to and proposed use of the property. ■ The boundaries of the TIF are shown on the map labeled Project Plan Exhibit: B; ■ Project Plan Exhibit: C shows existing land use within the TIF. Currently, the area is generally developed but contains less than ten percent residential. ■ Project Plan Exhibit: D lists and defines the public improvements being proposed for the TIF; ■ Project Plan Exhibit: E shows anticipated Future Land Use within the TIF. 1 PROJECT PLAN — DENTON TIF NO. 1 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. ■ Any changes to codes, ordinances, or master plan as a result of the creation of the TIF will be made through the standard process and procedures of the City. 3. A list of estimated non -project costs. ■ Non -project costs within the TIF are those development costs not paid for by the TIF. These costs will include, but are not limited to, $207.5 million, which is comprised of new private development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. ■ Although not anticipated, in the process of developing the TIF, any relocation will be made through the standard process and procedures of the City. 2 PROJECT PLAN — DENTON TIF NO. 1 EXHIBIT A Boundary Description Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot 1; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, Al 184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, A1184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract A1184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, A1184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, A1184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; PROJECT PLAN — DENTON TIF NO. 1 Boundary Description THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. 4 PROJECT PLAN — DENTON TIF NO. 1 TIF Boundary EXHIBIT B Legend ' TIF Boundary Centerline Streets perty Description Acreage wlor w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome Vacant Commercial Lots April 16 2010 Mlles This map is a graphic representation prepared by the City of Benton and Is Intended for use only as a reference. Data depicted 0 0.05 0.1 0.2 0.3 04 is not guaranteed for accuracy and maybe subject to revisionat anytime without notification. A Registered Surveyor for the State of Texas was not consu3ted. For Survey level accuracy, Supervision and cenificat€on of the produced data by a Registered Professional Land Surveyor for the State of Texas would need to be performed 5 PROJECT PLAN — DENTON TIF NO. 1 Existing Land Use EXHIBIT C Legend ' TIF Boundary -- Centerline Streets perty Description Acreage wlor w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Towmhome Vacant Commercial Lots N W E S S Jw April 16 2010 fWilleS This map is a graphic representation prepared by theCity of Denton and is intended for use only as a reference Data depicted 0 p.25 0.1 0.2p,g 04 is not guaranteed for accuracy and may be subject to revision at any time without notification. A Registered Surveyor for the State of Texas was not consulted. For Survey level accuracy, supervision and certification of the produced data by a Registered Professional Land Surveyor for the State of Texas would mod to be performed 6 PROJECT PLAN — DENTON TIF NO. 1 EXHIBIT D Project Plan PROJECT ESTIMATED COST, $M Parking / Transportation 8.0 Complete Streets 7.9 Support for Downtown Projects 4.9 Utility / Drainage Improvements 4.0 TOTAL 24.8 Project Definitions Parking/Transportation: Parking includes, but is not limited to, parking garages; surface parking; parking lighting; and parking signage and wayfinding. This project category was designed to provide adequate public facilities for transportation and to foster Transit Oriented Development (TOD) that will occur as a result of the planned transit station that will link Denton with passenger rail service to the City of Carrollton, where riders can transfer to the Dallas Area Rapid Transit (DART) system into the Dallas/ Fort Worth metroplex. The goal is to create compact, walkable, pedestrian -centered developments to enhance and act as a catalyst to spur additional development and redevelopment in the district. Complete Streets: are "multi -functional, pedestrian -oriented, aesthetically -pleasing, and safe and inviting for residents and visitors. Redeveloping the existing downtown street network into complete streets will create a pleasing public realm, which in turn supports and encourages a wide variety of new development and investment' according to the Downtown Implementation Plan. Elements of complete streets include the building to building improvements which may encompass: sidewalks, shared travel lanes (e.g. bus and bicycle), parallel and angled parking, pedestrian crosswalks, pedestrian and emergency bulb (American with Disabilities Act (ADA) accessibility), awnings, street improvements, planters, pedestrian street furniture, bike racks and pedestrian lighting. Downtown Projects: may include grants, loans and services for public and private development. Eligible TIF project costs are not limited to public uses and may also include projects that involve: historic preservation, demolition, environmental remediation and economic development grants. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. The chapter also includes a provision for the use of City employees, facilities and services. An example of a City service may include additional public safety personnel to serve the increased population created by the transit station and the surrounding transit oriented development. Solid 7 PROJECT PLAN — DENTON TIF NO. 1 EXHIBIT D Project Plan waste and recycling services tailored to serve the downtown area is another example of a public service. Utility Drainage: The downtown TIF district has an aging infrastructure and a number of properties that are situated in the floodplain making proper utility drainage an important component of the project plan. Utility drainage encompasses the physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities/systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices designed or intended to carry, direct, detain or otherwise control stormwater," according the Denton Development Code. Projects may include one or more categories that may be leveraged as an incentive for development in the TIF district. An example of such a project, that would include both the parking/transportation and the downtown project categories, is a public private partnership for the constriction of a parking garage and mixed use development that includes a public investment for additional parking for the public. 3 PROJECT PLAN - DENTON TIF NO. 1 EXHIBIT E Future Land Use 9 sAlegal\our documents\ordinances\11\tif finance feasibilty plan ord.doc ORDINANCE NO. 2011-129 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING THE FINANCE AND FEASIBILITY PLANS FOR THE TAX INCREMENT REINVESTMENT ZONE NUMBER 1 (DOWNTOWN TIF); AND DECLARING AN EFFECTIVE DATE. WHEREAS, on the 7t' day of December, 2010, the City Council of Denton, Texas, (the "City") established the Tax Increment Finance Zone Number One (Downtown TIF) (the "Zone") as authorized by Chapter 311 of the Texas Code (the "Act"); and WHEREAS, as authorized by section 311.010 of the Act, on March 25, 2011, the Board of Directors of the Zone voted to approve the Finance and Feasibility Plans, which are attached hereto as Exhibit "A" and recommended the Finance and Feasibility Plans be approved by the City Council; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton, Texas, hereby approves said Finance and Feasibility Plans for the Downtown TIF, which are attached and made a part by reference herein. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the �o� day of , 2011. /2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: 0- - WA I Al A APP VEDA TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: FINANCE PLAN — DENTON TIF NO. 1 FINANCE PLAN December 2010 Tax Increment Financing Reinvestment Zone No. I City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972-661-1973 schcli(&.swbell.net FINANCE PLAN — DENTON TIF NO. 1 The Financing Plan provides information on the projected monetary impact that the formation of the Tax Increment Financing Reinvestment Zone (TIF) could have on the property described in Finance Plan Exhibit: A and shown in Finance Plan Exhibit: B. It will also describe how that impact can be utilized to enhance the area and region through leveraging the resources of each entity that participates in the project. Below is a summary of the Financing Plan items required by law. 1. The proposed public improvements in the TIF may include: • Capital costs, including the actual costs of the constriction of public works, public improvements, new buildings, strictures, and fixtures; and the actual costs of the acquisition of land and the clearing and grading of land; • Financing costs, including all interest paid to holders of evidences of indebtedness or other obligations issued to pay for project costs and any premium paid over the principal amount of the obligations because of the redemption of the obligations before maturity; • Any real property assembly costs; • Professional service costs, including those incurred for architectural, planning, engineering, and legal advise and services; • Any relocation costs; • Organizational costs, including costs of conducting environmental impact studies or other studies, the cost of publicizing the creation of the TIF, and the cost of implementing the project plan for the TIF; • Interest before and during constriction and for one year after completion of constriction, whether or not capitalized; • The amount of any contributions made by the municipality from general revenue for the implementation of the project plan; • Imputed administrative costs, including reasonable charges for the time spent by employees of the municipality in connection with the implementation of a project plan; • The cost of operating the TIF and project facilities; and • Payments made at the discretion of the governing body of the municipality that the municipality finds necessary or convenient to the creation of the TIF or to the implementation of the project plans for the TIF. 2 FINANCE PLAN — DENTON TIF NO. 1 The specific capital improvement projects anticipated to be undertaken in the Denton TIF No. 1, are included in Finance Plan Exhibit. C. 2. Estimated Project Cost of TIF, including administrative expenses. • Project costs are estimated at approximately $24.8 million dollars. Specific cost estimates are included in Finance Plan Exhibit: C. 3. Economic Feasibility Study. • An economic feasibility analysis has been completed and is included as Finance Plan Exhibit: D. 4. The estimated amount of bonded indebtedness to be incurred. • If initial project costs are not advanced by a Developer, the City of Denton may consider issuing bonds when tax increment funds exceed the amount necessary to support debt service. 5. The time when related costs or monetary obligations are to be incurred. • Please refer to Finance Plan Exhibit: C for details regarding the type of improvement costs anticipated. The timing will be monitored by the TIF Board to insure adequate TIF funds are available. 6. A description of the methods of financing all estimated project costs and the expected sources of revenue to finance or pay project costs including the percentage of tax increment to be derived from the property taxes of each taxing unit on real property in the TIF. • Project costs will be financed through loans advanced by developers or by the use of tax increment funds received on a pay-as-you-go basis. No new debt is envisioned at this time, but bonds may be issued at a later date when adequate tax increment has been created to support debt service. The revenue sources will be the real property taxes captured by the TIF, which will account for 100% of revenues used to fund project costs or bond debt service. For the Financial Plan, the City will participate at varied tax rates for thirty (30) years. 7. The current total appraised value of taxable real property in the TIF. • The current appraised base value of the taxable real property in the TIF using the 2010 certified values provided by the Appraisal District is $80.2 million. 8. The estimated appraised value of the improvements in the TIF during each year of its existence. • The estimated appraised value of the improvements in the TIF per year is listed in the following FINANCE PLAN TABLE 1. FINANCE PLAN - DENTON TIF NO. 1 TABLE 1 Assessed Real Property Value Including Anticipated New Development Years 2010-2039 YEAR TOTAL ASSESSED VALUE, $M 2010 80.2 2011 81.6 2012 95.5 2013 100.2 2014 115.1 2015 118.9 2016 137.6 2017 145.5 2018 149.3 2019 162.2 2020 168.7 2021 177.1 2022 191.6 2023 200.2 2024 209.8 2025 223.9 2026 234.1 2027 244.3 2028 259.6 2029 266.9 2030 277.8 2031 2 83. 7 2032 294.6 2033 300.6 2034 3 11. 7 2035 318.3 2036 327.9 2037 334.6 2038 344.4 2039 351.2 4 FINANCE PLAN - DENTON TIF NO. 1 The estimated annual incremental funds available from future development in the TIF are listed in the following table. TABLE 2 Annual Incremental Funds Provided for TIF No. 1 Years 2010-2040 Year .ASSESSED VALUE $1\1 BASE .ASSESSED VALUE $1\1 ANNUAL CAPTURED VALUE $1\1 TIF FT TND, $I� 2010 80.2 80.2 -- Citv of Denton 2011 81.6 80.2 1.4 0.5862875 2012 95.5 80.2 15.3 10 2013 100.2 80.2 20.0 106 2014 115.1 80.2 34.9 138 2015 1189 80.2 38.7 241 2016 137.6 80.2 57.4 254 2017 145.5 80.2 65.3 376 2018 149.3 80.2 69.1 428 2019 162.2 80.2 82.0 453 2020 168.7 80.2 88.5 537 2021 177.1 80.2 96.9 549 2022 191.6 80.2 111.4 602 2023 200.2 80.2 120.0 692 2024 209.8 80.2 129.6 745 2025 223.9 80.2 143.7 805 2026 234.1 80.2 153.9 892 2027 244.3 80.2 164.1 955 2028 259.6 80.2 179.4 1,019 2029 266.9 80.2 186.7 1,114 2030 277.8 80.2 197.6 1,159 2031 283.7 80.2 203.5 1,159 2032 294.6 80.2 214.4 1,193 2033 300.6 80.2 220.4 1,257 2034 311.7 80.2 231.5 1,292 2035 318.3 80.2 238.1 1,357 2036 3279 80.2 247.7 1,396 2037 334.6 80.2 254.4 1,452 2038 344.4 80.2 264.2 1,492 2039 351.2 80.2 271.0 1,549 2040 -- -- -- 1,589 TOTAL 351.2 80.2 271.0 24,811 9. The duration of the TIF: The TIF was created in 2010. It is proposed that the TIF exist for thirty (30) years with termination of the TIF set as 2039 or the date when all project costs are paid and any debt is retired, whichever comes first. 2010 TIF CONTRIBUTION T.A1 RATE $100 V.ALU.ATION Tal Rate $100 Valuation MARS 1 - 5 MARS 6 - 10 MARS 11 - 20 MARS 21 - 30 Citv of Denton 0.68975 0.68975 0.6552625 0.6207750 0.5862875 9. The duration of the TIF: The TIF was created in 2010. It is proposed that the TIF exist for thirty (30) years with termination of the TIF set as 2039 or the date when all project costs are paid and any debt is retired, whichever comes first. FINANCE PLAN — DENTON TIF NO. 1 EXHIBIT A Boundary Description Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot 1; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, A1184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, A1184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract A1184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, A1184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, A1184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; 6 FINANCE PLAN — DENTON TIF NO. 1 Boundary Description THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. 7 FINANCE PLAN — DENTON TIF NO. 1 Property Boundary Map EXHIBIT B Legend ' TIF Boundary Centerline Streets perty Description Acreage calor w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome Vacant Commercial Lots April 16 2010 Miles This map is a graphic representation prepared by the City of Denton and Is Intended for use only as a reference. Data depicted 0 0.05 0.1 0.2 0.3 0.4 is not guaranteed for accuracy and maybe subject to revision at any time without notification. A Registered Surveyor for tate State of Texas was not consulted. For Survey level accuracy, supervision and certification of the produced data by a Registered Professional Land Surveyor for the State of Texas would need to be performed 3 EXHIBIT C PROJECT ESTIMATED COST, $M Parking / Transportation 8.0 Complete Streets 7.9 Support for Downtown Projects 4.9 Utility / Drainage Improvements 4.0 TOTAL 24.8 Project Definitions Parking/Transportation: Parking includes, but is not limited to, parking garages; surface parking; parking lighting; and parking signage and wayfinding. This project category was designed to provide adequate public facilities for transportation and to foster Transit Oriented Development (TOD) that will occur as a result of the planned transit station that will link Denton with passenger rail service to the City of Carrollton, where riders can transfer to the Dallas Area Rapid Transit (DART) system into the Dallas/ Fort Worth metroplex. The goal is to create compact, walkable, pedestrian -centered developments to enhance and act as a catalyst to spur additional development and redevelopment in the district. Complete Streets: are "multi -functional, pedestrian -oriented, aesthetically -pleasing, and safe and inviting for residents and visitors. Redeveloping the existing downtown street network into complete streets will create a pleasing public realm, which in turn supports and encourages a wide variety of new development and investment' according to the Downtown Implementation Plan. Elements of complete streets include the building to building improvements which may encompass: sidewalks, shared travel lanes (e.g. bus and bicycle), parallel and angled parking, pedestrian crosswalks, pedestrian and emergency bulb (American with Disabilities Act (ADA) accessibility), awnings, street improvements, planters, pedestrian street furniture, bike racks and pedestrian lighting. Downtown Projects: may include grants, loans and services for public and private development. Eligible TIF project costs are not limited to public uses and may also include projects that involve: historic preservation, demolition, environmental remediation and economic development grants. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. The chapter also includes a provision for the use of City employees, facilities and services. An example of a City service may include additional public safety personnel to serve the increased population created by the transit station and the surrounding transit oriented development. Solid FINANCE PLAN — DENTON TIF NO. 1 EXHIBIT D Project Plan waste and recycling services tailored to serve the downtown area is another example of a public service. Utility Drainage: The downtown TIF district has an aging infrastructure and a number of properties that are situated in the floodplain making proper utility drainage an important component of the project plan. Utility drainage encompasses the physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities/systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices designed or intended to carry, direct, detain or otherwise control stormwater," according the Denton Development Code. Projects may include one or more categories that may be leveraged as an incentive for development in the TIF district. An example of such a project, that would include both the parking/transportation and the downtown project categories, is a public private partnership for the constriction of a parking garage and mixed use development that includes a public investment for additional parking for the public. 10 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis FEASIBILITY ANALYSIS (EXHIBIT D OF THE FINANCE PLAN) December 2010 Tax Increment Financing Reinvestment Zone No. I City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972-661-1973 schclic,swbell.net FINANCE PLAN: EXHIBIT D -- Feasibility Analysis INDEX I Page Index 1 Forward 2 Section I: HISTORY 3 Section II: CURRENT CONDITION /STATE 4 Section III: TAX INCREMENT ANALYSIS 6 Section IV: TABLES 11 TABLE I -- General Value Increase, $M 12 TABLE 2 -- Catalyst Project Value Increase, $M 13 TABLE 3 -- Other Development Redevelopment Value Increase, $M 14 TABLE 4 -- Cumulative Total Value Increase, $M 15 TABLE 5 -- City Contribution to TIF, W 16 TABLE 6 -- City BPP Value Increase, W 17 TABLE 7 -- Total Income to Citv, W 18 Section V: EXHIBITS 19 EXHIBIT I -- Catalyst Project Overview 20 EXHIBIT II --Area A 21 EXHIBIT III --Area B 22 EXHIBIT IV -- Area C 23 EXHIBIT V -- Area D 24 EXHIBIT VI -- Area E 25 I FINANCE PLAN: EXHIBIT D -- Feasibility Analysis FOR WARD Schrader & Cline, LLC was asked to prepare a Feasibility Analysis using tax increment financing to encourage accelerated development and redevelopment for Tax Increment Financing Reinvestment Zone (TIF) No. 1 in the City of Denton, Texas. The areas of the City within the boundary of the TIF need public infrastructure projects that will provide a stimulus for new development. Section I summarizes the history of Denton. Section II is a brief discussion of the current condition/state. Section III details the tax increment analysis. Section IV contains Tables. Section V contains Exhibits. The following projections of development, redevelopment and tax revenues are subject to change. As underlying conditions in the national and regional economy change, the pace and value of new development and redevelopment projected for the TIF area may shift. Future property tax rates are particularly difficult to predict given their dependence on changes in the tax base, the mix of taxes levied and the various jurisdictions' overall fiscal and budgetary policies. Thus, the projected tax increments are subject to change. The analysis of future tax increment funds is dependent on a series of projections, assumptions, and other inputs. As a result, the report should be reviewed in totality. Neither this report nor its conclusions may be referred to or included in any prospectus or part of any offering made in connection with private syndication of equity, sale of bonds, sale of securities or sale of participation interests to the public without express written approval. 2 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis SECTION L• HISTORY Denton, the county seat of Denton County, is located on IH 35, less than forty miles north of Dallas and Fort Worth. Because of its proximity, Denton has become closely associated with the Dallas - Fort Worth metropolitan area. The City was founded in 1857 in order to become the county seat, because it was located near the center of the County. Although established in 1857, and with a courthouse built on the north side of the square, it was not until 1866 that Denton was incorporated. In its early years, Denton grew slowly, but that changed with completion of the Texas and Pacific Railway and the Missouri, Kansas and Texas Railway through Denton in 1881. With only north and south rail connections, however, the town did not develop as a manufacturing and wholesale center. The next spur to Denton's growth came in 1890 with the opening of North Texas Normal College (now the University of North Texas) and in 1903 with the opening of the Girls Industrial College (now Texas Woman's University). With these developments as catalysts, the City grew from a population of 1,194 in 1880 to 2,558 in 1890 and subsequently, over time, to a population of 26,844 in 1960 and to 48,063 in 1980. Proximity to Dallas and Fort Worth, with good interstate highway connections, played a major role in this growth. Steady and at times rapid growth of enrollment at the two universities was important also. Additionally, after 1974 the City added many new residents as a result of the opening of Dallas - Fort Worth International Airport, which is closer to Denton than to many parts of Dallas and Fort Worth. Many airline employees and executives who traveled for major companies took up residence in Denton. The City of Denton has also benefitted from the continued rapid growth of the metropolitan area and as this growth has moved northward, the City has grown in population from 66,270 in 1990 to 80,537 in 2000 to a currently estimated 122,830, according to the U.S. Census Bureau. FINANCE PLAN: EXHIBIT D -- Feasibility Analysis SECTION IT CURRENT CONDI TION I STATE While Denton has grown to a population in excess of 100,000, the Denton downtown has not shared in the growth. One of the primary reasons for the lack of growth in the downtown area is the condition of the infrastructure. Many of the water and sewer lines serving downtown are 50 years old or older and are undersized to support new and more dense development and redevelopment. Drainage is poor. Many streets have fallen in need of repair or reconstruction, with unsafe sidewalks which do not meet ADA requirements. There also is a lack of parking to serve a higher level of development. The City of Denton has the potential, the need and the desire to undergo a successful revitalization of its downtown. To begin the effort, the City approved a Downtown Masterplan by Fregonese Calthorpe Associates and TIP Strategies in May/June 2003. This was followed by a Downtown Redevelopment Implementation Plan done by Leland Consulting Group and RTKL in 2005. The Leland / RTKL plan suggested five catalyst projects which would -- • Address underserved market niches • Provide direction for targeting and leveraging public investment • Advance market -tested vision over near-term and long-term • Create a physically and economically sustainable plan As one of the potential implementation tools for this plan, Leland/RTKL recommended creation of a Tax Increment Financing (TIF) Reinvestment Zone to fund public improvements which would provide assistance and stimulus for private redevelopment and new development. To further define and guide downtown public infrastructure improvements that would help stimulate private development and be funded by a TIF, the City of Denton asked Jacobs to prepare a Downtown Implementation Plan. This plan, presented to the community and adopted by the Denton City Council in August 2010, focused on parking, complete streets, solid waste, a form base code and the planned transit oriented development. 4 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis Based on the Leland/RTKL recommendation, and following the Downtown Implementation Plan recommendations, the City of Denton is proposing creation of a TIF Reinvestment Zone for the downtown area. The "defined area" of approximately 225.73 acres was developed by city staff along with the Downtown Task Force and the Economic Development Partnership Board. New private development and redevelopment expected to occur as a result of public improvements funded by the TIF will increase downtown property values and tax income as well as bolster business personal property value and its related tax income for all taxing jurisdictions. TIF has been used in many other cities and is a proven method to stimulate private development and redevelopment growth sooner, rather than later, and in many cases will stimulate growth in value which might never occur without public improvements funded by the TIF. 5 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis SECTION III: TAX INCREMENT ANALYSIS This section documents the detailed analysis and inputs used to generate the tax increment revenue estimates. Tax Increment Financing involves: ■ Designating an eligible redevelopment area as a Tax Increment Financing Reinvestment Zone; ■ Soliciting participation of other taxing jurisdictions; ■ Setting the assessment base at the level of the most recent assessment; and ■ Placing tax revenues generated by the increase in assessed value in a tax increment fund for funding public improvements. Thus, future tax increment revenues depend on four elements: ■ The timing and added value of new development; ■ Appreciation of existing land and improvements; ■ The loss of value from any existing improvements demolished to make way for new development; and ■ Future tax rates and the percentage of participation of each taxing jurisdiction. Assessment policies typically set building assessments at 100 percent of fair market value, which are generally comparable to constriction costs for new constriction. Assessed values are established as of January 1 of the tax year. Thus, development in 2010 goes on the tax rolls for the Tax Year 2011. In this analysis, to be conservative, no increase in value on redevelopment or new development after completion has been included. In addition, after the initial five years, only a portion of the taxes from increases in real property values for the City of Denton are directed to the TIF Fund. Taxes from the remaining portion on real property values and 100% of all taxes from increases in business personal property values will flow to the City. All taxes from increases in real property and business personal property values will flow to the other taxing jurisdictions. Sales tax income generated from both existing retail and new retail will continue to flow to the City of Denton. The total year 2010 taxable value of the property within the TIF boundary is estimated to be $80.2 million. 6 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis For the purposes of this tax increment analysis, the initial tax base for the Tax Increment Fund is assumed to be $80.2 million. Taxes on the amount of base tax value will continue to flow to all taxing jurisdictions during the 30 -year life of the TIF. The increase in value as a result of development and redevelopment within the TIF boundary is expected to be created in three different categories: 1. the general increase in values over time through normal Appraisal District revaluations and overall inflation; 2. the new values created by completion of the catalyst projects identified in the Downtown Redevelopment Implementation Plan; and 3. other general development and redevelopment expected to occur within the TIF boundary. Each of these will be discussed in more detail in the following sections. General Increase General value increases are based on the City of Denton forecast through 2014. The average increase through 2014 is 2.2% per year. To be somewhat conservative, beyond 2014 an average annual increase of 2% per year was used. This annual increase still generated an increase in value within the TIF from $80.2 million to $143.7 million, an increase of $63.5 million (see attached Table 1). Catalyst Projects As mentioned previously, the city of Denton commissioned the team of Leland Consulting Group and RTKL Associates, Inc. to provide a Downtown Redevelopment Implementation Plan. This team evaluated five potential catalyst projects (see Exhibit 1) which would-- • Address underserved market niches in Denton, • Promote density and increase in "rooftops", • Provide direction for targeting and leveraging public investment, • Advance market -tested vision over near- and long-term, and • Create a physically and economically sustainable plan. These catalyst projects would focus on -- 7 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis • Strengthening the core, • Transit, • Infill development, • Connecting the Civic Center to downtown, and • Gateways into downtown. For this analysis, the project values developed by the team for each catalyst project except catalyst project A were used. Project A value was developed based on more recent input from City Staff. Each project is projected to develop over the time periods shown below. The location of each project is shown in Exhibits 11, III, IV, V, and VI, and a summary is shown below. Area Description Value, $M Development The value created over the life of the TIF by these five catalyst projects is shown in attached Table 2. Other Development/Redevelopment New development and redevelopment value increases during the past few years within the downtown area have averaged about $1.7 million per year. With the stimulus provided by the catalyst projects and with the potential aid of TIF funds, this analysis assumed that a higher level of development and redevelopment within the TIF are would occur as shown below. 3 Time Period A Mixed-use Residential/Retail/Transit 55 2012-2028 B Mixed-use Residential/Retail 14 2017-2029 C Residential Infill 16 2020-2034 D Mixed-use Office/Residential 27 2022-2038 E Residential Infill 13 2017-2027 The value created over the life of the TIF by these five catalyst projects is shown in attached Table 2. Other Development/Redevelopment New development and redevelopment value increases during the past few years within the downtown area have averaged about $1.7 million per year. With the stimulus provided by the catalyst projects and with the potential aid of TIF funds, this analysis assumed that a higher level of development and redevelopment within the TIF are would occur as shown below. 3 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis Development Annual Value Time Period Increase, $M 2010 2011 3.0 2012-2014 1.5 2015-2019 2.0 2020-2024 2.5 2025-2029 3.0 2030-2034 3.5 2035-2039 4.0 The value created over the life of the TIF by general development/redevelopment is shown in attached Table 3. The forecast of increased value created within the TIF boundary during the next 30 years from these three categories is shown in Table 4. Income to the TIF Fund based on the values shown in attached Table 4 and the City of Denton tax rate assumptions shown below is detailed in attached Table 5. Jurisdiction Years 2010 Tax Rate % of $/$100 Value Tax Rate City of Denton 1-5 0.6897500 100 6-10 0.6552625 95 11-20 0.6207750 90 21-30 0.5862875 85 Attached Table 5 also shows income which flows to the general fund of the City from the remaining tax rate not applied to the TIF. Business Personal Property tax income will also be generated from increased values within the TIF. Business Personal Property & Inventory (BPP) values for 2009 in the TIF area was 39.1% of real property values. For this analysis, a conservative forecast of BPP tax income to the City in the TIF District is based on BPP values being 40% of real property values initially, declining 9 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis annually to 30% by 2021 and remaining at 30% thereafter using 100% of the tax rate. This income from BPP is shown in attached Table 6. Attached Table 7 shows a forecast of total income to the City during the 30 year life of the TIF. This income is generated from the non -TIF portion of the real property tax rate and BPP income, both from new values generated within the TIF and also from real property and BPP base values. A summary of income to the TIF and the City General Fund over the 30 -year life of the TIF is shown below. Jurisdiction TIF Fund, $K CITY Income, $K City of Denton 24,811 3 5,615 The public infrastructure projects planned to stimulate the higher values created by the TIF are shown in Project Plan Exhibit D. 10 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis SECTION I V.• TABLES 11 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 1 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. I GENERAL VALUE INCREASE, $M YEAR VALUE BASE VALUE VALUE INCREASE 2010 80.2 80.2 - 2011 78.6 80.2 (1.6) 2012 81.0 80.2 0.8 2013 84.2 80.2 4.0 2014 87.6 80.2 7.4 2015 89.4 80.2 9.2 2016 91.1 80.2 10.9 2017 93.0 80.2 12.8 2018 94.8 80.2 14.6 2019 96.7 80.2 16.5 2020 98.7 80.2 18.5 2021 100.6 80.2 20.4 2022 102.6 80.2 22.4 2023 104.7 80.2 24.5 2024 106.8 80.2 26.6 2025 108.9 80.2 28.7 2026 111.1 80.2 30.9 2027 113.3 80.2 33.1 2028 115.6 80.2 35.4 2029 117.9 80.2 3 7. 7 2030 120.3 80.2 40.1 2031 122.7 80.2 42.5 2032 125.1 80.2 44.9 2033 127.6 80.2 47.4 2034 130.2 80.2 50.0 2035 132.8 80.2 52.6 2036 135.4 80.2 55.2 2037 138.1 80.2 57.9 2038 140.9 80.2 60.7 2039 143.7 80.2 63.5 TOTAL 143.7 80.2 63.5 *Increases based on City of Denton forecast through 2014. Beyond 2014 assumed average of 2% / year increase. TABLE 2 12 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. I CATALYST PROJECT VALUE INCREASE, $M YEAR A B C D E TOTAL CUM.TOTAL 2010 - - - - - - - 2011 - - - - - - - 2012 10.0 - - - - 10.0 10.0 2013 - - - - - - 10.0 2014 10.0 - - - - 10.0 20.0 2015 - - - - - - 20.0 2016 15.0 - - - - 15.0 3 5. 0 2017 - 2.0 - - 2.0 4.0 39.0 2018 - - - - - - 39.0 2019 5.0 2.0 - - 2.0 9.0 48.0 2020 - - 2.0 - - 2.0 50.0 2021 - 2.0 - - 2.0 4.0 54.0 2022 5.0 - 2.0 3.0 - 10.0 64.0 2023 - 2.0 - - 2.0 4.0 68.0 2024 - - 2.0 3.0 - 5.0 73.0 2025 5.0 2.0 - - 2.0 9.0 82.0 2026 - - 2.0 3.0 - 5.0 87.0 2027 - 2.0 - - 3.0 5.0 92.0 2028 5.0 - 2.0 3.0 - 10.0 102.0 2029 - 2.0 - - - 2.0 104.0 2030 - - 2.0 3.0 - 5.0 109.0 2031 - - - - - - 109.0 2032 - - 2.0 3.0 - 5.0 114.0 2033 - - - - - - 114.0 2034 - - 2.0 3.0 - 5.0 119.0 2035 - - - - - - 119.0 2036 - - - 3.0 - 3.0 122.0 2037 - - - - - - 122.0 2038 - - - 3.0 - 3.0 125.0 2039 - - - - - - 125.0 TOTAL 55.0 14.0 16.0 27.0 13.0 125.0 125.0 13 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 3 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. 1 OTHER DEVELOPMENT/REDEVELOPMENT VALUE INCREASE, $M YEAR VALUE CUM. VALUE 2010 - - 2011 3.0 3.0 2012 1.5 4.5 2013 1.5 6.0 2014 1.5 7.5 2015 2.0 9.5 2016 2.0 11.5 2017 2.0 13.5 2018 2.0 15.5 2019 2.0 17.5 2020 2.5 20.0 2021 2.5 22.5 2022 2.5 25.0 2023 2.5 27.5 2024 2.5 30.0 2025 3.0 33.0 2026 3.0 36.0 2027 3.0 39.0 2028 3.0 42.0 2029 3.0 45.0 2030 3.5 48.5 2031 3.5 52.0 2032 3.5 55.5 2033 3.5 59.0 2034 3.5 62.5 2035 4.0 66.5 2036 4.0 70.5 2037 4.0 74.5 2038 4.0 78.5 2039 4.0 82.5 TOTAL 82.5 82.5 14 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 4 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. I CUMULATIVE TOTAL VALUE INCREASE, $M YEAR GENERAL CATALYST OTHER TOTAL 2010 - - - - 2011 (1.6) - 3.0 1.4 2012 0.8 10.0 4.5 15.3 2013 4.0 10.0 6.0 20.0 2014 7.4 20.0 7.5 34.9 2015 9.2 20.0 9.5 38.7 2016 10.9 35.0 11.5 57.4 2017 12.8 39.0 13.5 65.3 2018 14.6 39.0 15.5 69.1 2019 16.5 48.0 17.5 82.0 2020 18.5 50.0 20.0 88.5 2021 20.4 54.0 22.5 96.9 2022 22.4 64.0 25.0 111.4 2023 24.5 68.0 27.5 120.0 2024 26.6 73.0 30.0 129.6 2025 28.7 82.0 33.0 143.7 2026 30.9 87.0 3 6. 0 15 3. 9 2027 33.1 92.0 39.0 164.1 2028 35.4 102.0 42.0 179.4 2029 3 7. 7 104.0 45.0 186.7 2030 40.1 109.0 48.5 197.6 2031 42.5 109.0 52.0 2 03. 5 2032 44.9 114.0 55.5 214.4 2033 47.4 114.0 59.0 220.4 2034 50.0 119.0 62.5 23 1. 5 2035 52.6 119.0 66.5 23 8. 1 2036 55.2 122.0 70.5 247.7 2037 57.9 122.0 74.5 254.4 2038 60.7 125.0 78.5 264.2 2039 1 63.5 1 125.0 1 82.5 1 271.0 TOTAL 1 63.5 1 125.0 1 82.5 1 271.0 15 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 5 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. 1 CITY YEAR TOTAL REAL PROPERTY VALUE INCREASE, $M CONTRIBUTION TO TIF, $K* INCOME TO CITY, $K 2010 - - - 2011 1.4 - - 2012 15.3 10 - 2013 20.0 106 - 2014 34.9 138 - 2015 3 8. 7 241 - 2016 57.4 254 13 2017 65.3 376 20 2018 69.1 428 23 2019 82.0 453 24 2020 88.5 537 28 2021 96.9 549 61 2022 111.4 602 67 2023 120.0 692 77 2024 129.6 745 83 2025 143.7 805 89 2026 153.9 892 99 2027 164.1 955 106 2028 179.4 1,019 113 2029 186.7 1,114 124 2030 197.6 1,159 129 2031 2 03. 5 1,159 204 2032 214.4 1,193 211 2033 220.4 1,257 222 2034 23 1. 5 1,292 228 2035 238.1 1,357 240 2036 247.7 1,396 246 2037 254.4 1,452 256 2038 264.2 1,492 263 2039 271.0 1,549 273 2040 - 1,589 280 TOTAL 271.0 24,811 3,479 * Based on 2010 tax rate of: Years 1 - 5 $0.6897500 / $100 valuation (100%) Years 6 - 10 $0.6552625 / $100 valuation (95%) Years 11 - 20 $0.6207750 / $100 valuation (90%) Years 21 - 30 $0.5862875 / $100 valuation (85%) 16 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 6 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. I CITY YEAR TOTAL REAL PROPERTY VALUE INCREASE, $M BUSINESS PERSONAL PROPERTY INCOME TO CITY, $K** % VALUE INCREASE, $M 2010 - - - - 2011 1.4 40 1 0.6 - 2012 15.3 39 6.0 4 2013 20.0 38 7.6 41 2014 3 4. 9 37 12.9 52 2015 3 8. 7 36 13.9 89 2016 57.4 35 20.1 96 2017 65.3 34 22.2 139 2018 69.1 33 22.8 153 2019 82.0 32 26.2 157 2020 88.5 31 27.4 181 2021 96.9 30 29.1 189 2022 111.4 30 33.4 201 2023 120.0 30 3 6. 0 230 2024 129.6 30 38.9 248 2025 143.7 30 43.1 268 2026 153.9 30 46.2 297 2027 164.1 30 49.2 319 2028 179.4 30 53.8 339 2029 186.7 30 56.0 371 2030 197.6 30 59.3 386 2031 203.5 30 61.1 409 2032 214.4 30 64.3 421 2033 220.4 30 66.1 444 2034 23 1. 5 30 69.5 456 2035 238.1 30 71.4 479 2036 247.7 30 74.3 492 2037 254.4 30 76.3 512 2038 264.2 30 79.3 526 2039 1 271.0 30 1 81.3 547 2040 1 - - I - 561 TOTAL 1 271.0 30 1 81.3 8,607 *Estimated Business Personal Property & Inventory value for 2010 is $299 million, 39.1 % of real property value. To be conservative this percentage Nvas reduced from 40% to 30% over the next 11 years. This value Nvas used for the remainder of the TIF life. **Based on tax rate of $0.68975 / $100 valuation applied to business personal property & inventory value increases. 17 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis TABLE 7 CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE NO. 1 CITY YEAR INCOME FROM NEW REAL PROPERTY TAX, $K INCOME FROM NEW BUSINESS PERSONAL PROPERTY TAX, $K SUBTOTAL INCOME FROM NEW VALUES, $K INCOME TO CITY FROM BASE REAL AND BPP VALUES, $K* TOTAL INCOME TO CITY, $K 2010 - - - 759 759 2011 - - - 759 759 2012 - 4 4 759 763 2013 - 41 41 759 800 2014 - 52 52 759 811 2015 - 89 89 759 848 2016 13 96 109 759 868 2017 20 139 159 759 918 2018 23 153 176 759 935 2019 24 157 181 759 940 2020 28 181 209 759 968 2021 61 189 250 759 1,009 2022 67 201 268 759 1,027 2023 77 230 307 759 1,066 2024 83 248 331 759 1,090 2025 89 268 357 759 1,116 2026 99 297 396 759 1,155 2027 106 319 425 759 1,184 2028 113 339 452 759 1,211 2029 124 371 495 759 1,254 2030 129 386 515 759 1,274 2031 204 409 613 759 1,372 2032 211 421 632 759 1,391 2033 222 444 666 759 1,425 2034 228 456 684 759 1,443 2035 240 479 719 759 1,478 2036 246 492 738 759 1,497 2037 256 512 768 759 1,527 2038 263 526 789 759 1,548 2039 273 547 820 759 1,579 2040 280 561 841 759 1,600 TOTAL 3,479 8,607 12,086 23,529 35,615 * Based on 2010 real property value and 2009 business personal property & inventory value. 18 FINANCE PLAN: EXHIBIT D -- Feasibility Analysis SECTION V. EXHIBITS 19 0 V) (1) _C \\ -0 0 N >0 C m = - 41) (n >> _ (1) m OL 04-0 0_0 (1) 42 - ZO CL -,e LL .— T (.) (.) C)L CL 4) CR QL M CL ca m c 6- 4-j j; 3: E 6 E M w " > E c (a ;;-- 4-j Oi W 4-4 CY) CY) 70 0 41) o - 0 U) 70 -0 -0 > 0 If x m E m Lj- -0 m m CL cr x W a %MOO -0 o 4-5 -C :tt CL 4- 0 CL > 0 > �C - w o 0 73 20 c 0 C: r -L o c o M C M min O)o 0 Z3 4) w m -&a m a-) 0) 0 CL 0) (1)° 0 c 0 > 7= m -CM a) =3 -C 0 < m 4-a \ / : � / � � / ? 0" E CL 5) 2E m 0 -00) w E u) S ORDINANCE NO. 2014-221 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN AMENDMENT TO THE PROJECT PLAN FOR TAX INCREMENT FINANCE ZONE NUMBER 1 (DOWNTOWN TIF) BY ADDING EXAMPLES OF CERAIN TYPES OF PROJECTS WHICH MAY FACILITATE ECONOMIC DEVELOPMENT; 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 (the "Amendment") to the Project Plan for Tax Increment Finance Zone Number 1 (Downtown TIF No. 1) in substantially the form of the Amendment, which is attached hereto and made 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 A� ATTEST: JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY: t� day of 2014. C IS WATTS, MAYOR PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY PRELIMINARY PROJECT PLAN December 2010 Tax Increment Financing Reinvestment Zone No. 1 City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972-661-1973 schch(aiswbell.net December The City of Denton, Texas proposes to establish a Tax Increment Financing Reinvestment Zone ("TIF") for the purpose of dedicating the increase in tax revenue generated within the TIF to provide funds for public infrastructure to encourage accelerated development and redevelopment in the downtown area of the City. The TIF consists of approximately 225.73 acres and is more fully described in Project Plan Exhibit A. The City is creating this TIF to encourage accelerated development and redevelopment in this area of the City in an effort to stimulate new higher value, higher density development which would benefit and be incentivized from the proposed public infrastructure improvements. It is expected that the TIF will exist for thirty (30) years or the date when all project costs are paid, whichever comes first. As set forth in Section 311.011 of the Tax Increment Financing Act of the Texas Tax Code Ann., the Project Plan for Tax Increment Financing Reinvestment Zone No. 1, Denton, Texas must and does include the following elements: 1. A map showing existing uses and conditions of real property in the TIF and a map showing proposed improvements to and proposed use of the property. The boundaries of the TIF are shown on the map labeled Project Plan Exhibit: B; a Project Plan Exhibit: C shows existing land use within the TIF. Currently, the area is generally developed but contains less than ten percent residential. ■ Project Plan Exhibit: D lists and defines the public improvements being proposed for the TIF; a Project Plan Exhibit: E shows anticipated Future Land Use within the TIF. 1 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. ■ Any changes to codes, ordinances, or master plan as a result of the creation of the TIF will be made through the standard process and procedures of the City. 3. A list of estimated non -project costs. ■ Non -project costs within the TIF are those development costs not paid for by the TIF. These costs will include, but are not limited to, $207.5 million, which is comprised of new private development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. ■ Although not anticipated, in the process of developing the TIF, any relocation will be made through the standard process and procedures of the City. K Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot 1; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, Al 184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, Al 184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, Al 184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, A1184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; 3 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY Boundary Description THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. M PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY TIF Boundary EXHIBIT B Legend TIF Boundary Centerline Streets perty Description Acreage w/or w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome Vacant Commercial Lots April 16 2010 M Miles This map Is a graphic representation prepared by the City of Denton and Is Intended for use only as a reference. Data depicted 0 0,05 01 0.2 0.3 0.4 Is not guaranteed for accuracy and maybe subject to revislon at any time wlthout notification. A Registered Surveyor for the State of Texas was not consulted. For Survey level accuracy, supervision and certification of the produced data by a Registered Professional Land Surveyor for the Stale of Texas would need to be performed Existing Land Use Legend 'TIF Boundary • Centerline Streets perty Description Acreage w/or w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome, Vacant Commercial Lots U` - —__-- Miles This map Is a graphic representation prepared by the Clty of Denton and Is Intended for use only as a reference. Data deplcled 0 0.05 0.1 0.2 0.3 0.4 Is not guaranteed for accuracy and maybe subject to revision a1 any time without notification. A Registered Surveyor for the State of Texas was not consulted. For Survey level accuracy, supervision and certigcatlon of the produced data by a Registered Professional Land Surveyor for the State of Texas would need to be performed on EXHIBIT D Project Plan PROJECT ESTIMATED COST, $M Parking / Transportation 8.0 Complete Streets 7.9 Support for Downtown Projects 4.9 Utility / Drainage Improvements 4.0 TOTAL 24.8 Project Definitions Parkin /importation: Parking includes, but is not limited to, parking garages; surface parking; parking lighting; and parking signage and wayfinding. This project category was designed to provide adequate public facilities for transportation and to foster Transit Oriented Development (TOD) that will occur as a result of the planned transit station that will link Denton with passenger rail service to the City of Carrollton, where riders can transfer to the Dallas Area Rapid Transit (DART) system into the Dallas/ Fort Worth metroplex. The goal is to create compact, walkable, pedestrian -centered developments to enhance and act as a catalyst to spur additional development and redevelopment in the district. Complete Streets: are "multi -functional, pedestrian -oriented, aesthetically -pleasing, and safe and inviting for residents and visitors. Redeveloping the existing downtown street network into complete streets will create a pleasing public realm, which in turn supports and encourages a wide variety of new development and investment" according to the Downtown Implementation Plan. Elements of complete streets include the building to building improvements which may encompass: sidewalks, shared travel lanes (e.g. bus and bicycle), parallel and angled parking, pedestrian crosswalks, pedestrian and emergency bulb (American with Disabilities Act (ADA) accessibility), awnings, street improvements, planters, pedestrian street furniture, bike racks and pedestrian lighting. Downtown Projects: may include grants, loans and services for public and private development. Eligible TIF project costs are not limited to public uses and may also include projects that involve: historic preservation, demolition, environmental remediation and economic development grants. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. The chapter also includes a provision for the use of City employees, facilities and services. An example of a City service may include additional public safety personnel to serve the increased population created by the transit station and the surrounding transit oriented development. Solid 7 lil 1,11 J11 LN" Project Plan fD►: fIIIING waste and recycling services tailored to serve the downtown area is another example of a public service. Pursuant to the Texas Local Government Code, section 272.001, the City of Denton may utilize City -owned property that is located in a reinvestment zone to facilitate economic projects which the Cityand TIF Board deem appropriate and desirable. The City may acquire, lease, sell or otherwise transfer property to accomplish the public purpose of economic development that is consistent with the Project Plan. Such projects may include public-private partnerships, transit -oriented developments, or the recruitment of specific industries including, but not limited to, hi -tech or emerging technology companies, local start-up businesses, artesian or "maker" industries, the creative sector, bakeries, microbreweries, micro -distilleries, wineries, grocery stores, or other industries that the TOF Board and the City Council deem desirable. Utility Drainage: The downtown TIF district has an aging infrastructure and a number of properties that are situated in the floodplain making proper utility drainage an important component of the project plan. Utility drainage encompasses the physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities/systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices designed or intended to carry, direct, detain or otherwise control stormwater," according the Denton Development Code. Projects may include one or more categories that may be leveraged as an incentive for development in the TIF district. An example of such a project, that would include both the parking/transportation and the downtown project categories, is a public private partnership for the construction of a parking garage and mixed use development that includes a public investment for additional parking for the public. PROJECT PLAN - DENTON TIF NO. 1 PRELIMINARY EXHIBIT E Future Land Use ++ -ti- c-1 to m N -ti- LD p Ln 00 M c -I N N tl- m 1- O N r, LD -i O 00c -I' 00 M Rzi Rzi O �t M N 00 to n i M N Cl Ln O l0 00 cd O N O LD Ln m to 00 c -I c -I M M Ln 1, N Rtil 00 Ln O M to 00 O 00 00 to m O Ln O l0 1" Ln 1%l Ln O 1--1 1--1 N M to to 00 -;t O N _3 m m 1--1 m to Rtl- 00 LD 00 n 00 00 Ql -i -i M Ln c -I c -I c -I c -I fC H O to Ln r%l m r%l Rtl- 00 1--1 ' N M 00 to -i -i -i p Ln Ln r- M RZF O n p 00 Ln N O M N N Ql 00 1- 00 M N Ql V M M N LD c-1 N H O O N U 3 N z Ql c -I N C Ln M N N Ln 00 to t ' m Ln c-1 M O m +' 3 O M Lr O O O M O to 1- 0 00 m Ln O M N O 00 N M to y N l0 M N D to N � r1 m m Ln r, > c n xLU Ln Ln Ln Ln Ln Ln Ln Ln 00 00 00 00 00 00 00 00 3 to to to to to to to to Ln Ln Ln Ln Ln Ln Ln Ln 4+ M M M M M M M M � of of of of of of of of L co U n n n n n n n n 41 m ,y c-1 N M Ln to r L '} c i -i c-1 c -I c-1 c-1 — O 0 0 0 0 0 0 1, = a+ ci N N N N N N -i O O N W r14 r14 ; Qi L L E > >C fC 4- Lu N m 0 _ x co z a fC ti N m Sec. 311.005. CRITERIA FOR REINVESTMENT ZONE. (a) To be designated as a reinvestment zone, an area must: (1) substantially arrest or impair the sound growth of the municipality or county designating the zone, retard the provision of housing accommodations, or constitute an economic or social liability and be a menace to the public health, safety, morals, or welfare in its present condition and use because of the presence of: (A) a substantial number of substandard, slum, deteriorated, or deteriorating structures; (B) the predominance of defective or inadequate sidewalk or street layout; (C) faulty lot layout in relation to size, adequacy, accessibility, or usefulness; (D) unsanitary or unsafe conditions; (E) the deterioration of site or other improvements; (F) tax or special assessment delinquency exceeding the fair value of the land; (G) defective or unusual conditions of title; (H) conditions that endanger life or property by fire or other cause; or (I) structures, other than single-family residential structures, less than 10 percent of the square footage of which has been used for commercial, industrial, or residential purposes during the preceding 12 years, if the municipality has a population of 100,000 or more; (2) be predominantly open or undeveloped and, because of obsolete platting, deterioration of structures or site improvements, or other factors, substantially impair or arrest the sound growth of the municipality or county; (3) be in a federally assisted new community located in the municipality or county or in an area immediately adjacent to a federally assisted new community; or (4) be an area described in a petition requesting that the area be designated as a reinvestment zone, if the petition is submitted to the governing body of the municipality or county by the owners of property constituting at least 50 percent of the appraised value of the property in the area according to the most recent certified appraisal roll for the county in which the area is located. (a-1) Notwithstanding Subsection (a), if the proposed project plan for a potential zone includes the use of land in the zone in connection with the operation of an existing or proposed regional commuter or mass transit rail system, or for a structure or facility that is necessary, useful, or beneficial to such a regional rail system, the governing body of a municipality may designate an area as a reinvestment zone. (b) In this section, "federally assisted new community" means a federally assisted area that has received or will receive assistance in the form of loan guarantees under Title X of the National Housing Act, if a portion of the federally assisted area has received grants under Section 107(a)(1) of the Housing and Community Development Act of 1974. Added by Acts 1987, 70th Leg., ch. 191, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 2, Sec. 14.05(a), eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1106, Sec. 27, eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1137, Sec. 18, eff. Sept. 1, 1989. Amended by: Acts 2005, 79th Leg., Ch. 1094 (H.B. September 1, 2005. Acts 2005, 79th Leg., Ch. 1347 (S.B. June 18, 2005. Acts 2007, 80th Leg., R.S., Ch. 921 14.003, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 1361 eff. June 15, 2007. Acts 2011, 82nd Leg., R.S., Ch. 1032 eff. June 17, 2011. 2120), Sec. 37, eff. 771), Sec. 1, eff. (H.B. 3167), Sec. (H.B. 2092), Sec. 1, (H.B. 2853), Sec. 3, Sec. 311.006. RESTRICTIONS ON COMPOSITION OF REINVESTMENT ZONE. (a) A municipality may not designate a reinvestment zone if: (1) more than 30 percent of the property in the proposed zone, excluding property that is publicly owned, is used for residential purposes; or (2) the total appraised value of taxable real property in the proposed zone and in existing reinvestment zones exceeds: (A) 25 percent of the total appraised value of taxable real property in the municipality and in the industrial districts created by the municipality, if the municipality has a population of 100,000 or more; or (B) 50 percent of the total appraised value of taxable real property in the municipality and in the industrial districts created by the municipality, if the municipality has a population of less than 100,000. (b) A municipality may not change the boundaries of an existing reinvestment zone to include property in excess of the restrictions on composition of a zone described by Subsection (a) . (c) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1032, Sec. 21, eff. June 17, 2011. (d) For purposes of this section, property is used for residential purposes if it is occupied by a house having fewer than five living units, and the appraised value is determined according to the most recent appraisal rolls of the municipality. (e) Subsection (a)(1) does not apply to a reinvestment zone designated under Section 311.005(a)(4). Added by Acts 1987, 70th Leg., ch. 191, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1137, Sec. 19, eff. Sept. 1, 1989. Amended by: Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 14.004, eff. September 1, 2007. Acts 2009, 81st Leg., R.S., Ch. 543 (S.B. 1633), Sec. 1, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 910 (H.B. 1770), Sec. 2, eff. June 19, 2009. Acts 2011, 82nd Leg., R.S., Ch. 1032 (H.B. 2853), Sec. 4, eff. June 17, 2011. Acts 2011, 82nd Leg., R.S., Ch. 1032 (H.B. 2853), Sec. 21, eff. June 17, 2011. N � FY o w ca. � AgE v o. m a E 2� E W E 8 o.. E 0 C.l ',� E'. ti° m a 0 03 Qi LL P C U U .i+ N N L U� ��yq N E O. ql 0 O Q > \ ice'. 4. V d W lk w eJY h 9 N � FY Id c O c Ln r" all r%l0 0�0 — L N 0� 00 .o V- — — Ln Ln r%, M O N O Q O — M �D O Ln Ln M �n w Ln O M O M 011 M w Ln N N p� N U ri ri C .o N o 3 V9- � � � N °' V Q Z, C Ln Ln O OM OD N G, O� LQ N O N V- — 00 N N o d4 .o d4 M d4 M d4 Un d4 � d4 4J c V- co 00 00 O 00 Ln M 'O O cn O , M O I'0 �n 00 V O O M 0 � uOCn Fn M d4 Ln Zn �O d4 O d4 Co 00 N d4 CO O0 d4 V- V 00 d4 N O �D M d4 M N 00 Ln d4 c O Ln r" all r%l0 0�0 — L N 0� 00 .o V- — — Ln Ln r%, M O N O O, 00 I-, 00 M N U ri ri C .o N o 3 V9- � � � N °' Z, 4J c O LI) M N N O 000 N MM � MM N M M M Ln � �' .X d4 d4 yc} d4 d4 d4 d4 � w � > 00 00 00 00 00 00 00 00 V M co «J a) L C C _ M -N a) w a) — N M V- Ln --O 0(V L. O 0 N 0 N 0 N 0 N 0 N 0 N m N E N V) 4J 4+ CA m m O N Z OL N M City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 17-673, Version: 1 Legislation Text AGENDA CAPTION Receive a report; hold a discussion, and receive departmental presentations in preparation for the FY 2017-18 Proposed Budget, Capital Improvement Program, and Five Year Financial Forecast. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Finance DCM: Bryan Langley DATE: June 6, 2017 SUBJECT Receive a report; hold a discussion, and receive departmental presentations in preparation for the FY 2017-18 Proposed Budget, Capital Improvement Program, and Five Year Financial Forecast. BACKGROUND The purpose of this work session and additional work sessions during the months of June and July is to have each City Department give a brief presentation to City Council. Each presentation will cover the structure and staffing of the Department, functional areas and major responsibilities, goal and accomplishments, performance measures, cost containment efforts and process improvement strategies. These presentations are scheduled to be presented during the months of June and July prior to the City Manager's proposed budget being presented to City Council on August 3, 2017. The planned presentations for this meeting are from Customer Service, Technology Services and Human Resources including the Risk Management and Health Insurance functions. The Departmental presentations are attached to this item. 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 — Agenda Information Sheet Exhibit 2 — PowerPoint Presentation — Customer Service Exhibit 3 — PowerPoint Presentation — Technology Services Exhibit 4 — PowerPoint Presentation — Human Resources Exhibit 5 — PowerPoint Presentation — Risk Management Exhibit 6 — PowerPoint Presentation — Health Insurance Respectfully submitted: Chuck Springer, 940-349-8260 Director of Finance N CD CD CD CD LIJ CD L- ca - E CD CD LIJ CD CD CD E CD I m E (1) 4--J V) 4--J CD 0 .................. .4 (3) < (3) CL- '42 E 0 0 all 0 r v o O Ln R* O r -I I�t CY) M Ql In I'D r -I lD m 00 M m lD I� lD rl Itil N 00 r -I 111 O in- I�t tn- Ln lD Itil I� It tn- 00 I- N N tn- tn- tn- tn- tn- Ln oo n �o�r-� R* Ln O N lD N lD m I-� lD N Ql 00 r -I O c'n Ql tn- M tn- I- r- 0 M i/)- Ql Ql in- in- in m 1.4 r -I tn tn- tn- O Ln R* O r -I I�t CY) M Ql In I'D r -I lD m 00 M m lD I� lD rl Itil N 00 r -I 111 O in- I�t tn- Ln lD Itil I� It tn- 00 I- N N tn- tn- tn- tn- tn- Ln oo n �o�r-� R* N � N N O N 00 00 M N C I- N N Ln 00 tn- M tn- 00 I- r -I M tn- r -I O -,.n in- in- C' 1.4 r -I tn- tn- tn- O Ln R* O r -I I�t CY) M Ql In I'D r -I lD m 00 M m lD I� lD rl Itil N 00 r -I 111 O in- I�t tn- Ln lD Itil I� It tn- 00 I- N N tn- tn- tn- tn- tn- Ln r -I r- lD R* lD 00 R* Ln Ln 00 m I- O c'n rl N 14 lD ::,:, r -I I- r" tn- I�t tn- r -I Ql 00 M tn- I- 00 in- in- in- N tn- O Ln R* O r -I I�t CY) M Ql In I'D r -I lD m 00 M m lD I� lD rl Itil N 00 r -I 111 O in- I�t tn- Ln lD Itil I� It tn- 00 I- N N tn- tn- tn- tn- tn- V) � { �} 0 � 2 �} �} �} �} 0 �} �} 0 0 I'D 00 cv lD r -I m 00 r -I I'D 00 N lD r -I N 00 r -I In 00 N lD r -I N 00 O In 00 N lD r -I N 00 O 4 4- Ln (a N (a U � W C GQ — N 4� Q O m — U_ 0 U_ 2 U_ O a' Q U 4-1 N N C7 i p o i, U Q CL Q i C N Q U O � DC Ln > i N U H Ln > N U H Ln > L- N U H %��� �% / i%li ....... //%/////ii %///////// iii pu�� I V 4-j r,�,� c Q) E Ln cta Q) E cta (D-0 �Z u E > 0 u 44 - VI) I I 0 l7f Ln V) E to u p m C� 0 44- 0 Q") r,�,� r6 Ln 0 l7f Ln V) E to u p m C� 0 44- 0 Q") Ln cta cta u V) C: 0 LA D cy, Ln LI) u < LU Ln M -0 LU cta ul (1) L- E cy- Lu o u u ro u L- V) Co Ln E a) U Cl 0V) 4-J 4 - 0 L- C: 0 U Ln Z5 Ljj r,,� r6 1 I I I 0 0 0 mi R a w ll� 0 C25 0 0 0 0 >� 4� 0 C: U V) CL Ll ro 41 :E 0 0 U > U 0 4� 4� 0 cr — u M :3 0 cr -3 > 2� 0 vi 4� 0 0 0 E -E M m E C: 0 0 0 > 0 4� :t U u 70- 70- E u E 0 >0 >0 "0 C: 0 0 0 _0 w > Y0 > 0 CL V) u cc: Ul m Ln C) u U CL E > 0 W 0- LU 0 :3 W0 CO V) '01, V) 1-1 0 ,V O U LL O 0 O O O O0 O O O O O Q) 0 4-j C� 4 E �J ,V O U LL O 0 O O O O0 O O O O O Q) 0 Q) U t1A C6 i C6 ,V O U LL O O O O O O O O O V) - O O O O O O O O O 06 & r�-I .r-� O� tom/} t/� t/)- t/)- t/)- t/)- O Q) 0 4-j Ln o C� a Q) U t1A C6 i C6 ,V O U LL O O O O O O O O O V) - O O O O O O O O O 06 & r�-I .r-� O� tom/} t/� t/)- t/)- t/)- t/)- O Q) 0 4-j c Q) E (10 Q) 4-j Q) U 4-j > Q) Q) E 4-j 0 c C) C) 4-j u V) C) Q) F- U r --i L04 Ln .2 u C3 t-- 4-� z U-) N rr� U-) 00 4-� I 4-� I ryi qzj: Lfi lic ............ 0 W, 0 07 N `� Ol r, 4j)-� p O Ol rn m r, to to M r� 4j)- -Ln c*i 4j)- -Ln 4j)- l0 N l0 00 N -zt r, r- � 00 m N 00 l0 O -kn .�-I 1p N ON zt m n l0 N 00 IZI -Ln m -Ln N t/)- -Ln c I i/? i/? -Ln l0 l0 0) 10 N m <D m Ln N O ci o r,:m o C- to 0000 � ko m � � � ul � -tn i/? r -I N m l0 0�0, l0 N o m � � to m O to w rn L ri Ol r -I 00 r -j i/} 00 nj 0) n Lr) 0 r -I m m 00 lZ O M {n N to cI {l N 4j)- 4j)- 4j)- U) /? 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McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-730, Version: 1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding an ordinance prohibiting the use of Engine Compression Brakes within the City of Denton. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com DEPARTMENT: CM/ DCM/ ACM: DATE: SUBJECT AGENDA INFORMATION SHEET Police Todd Hileman, City Manager June 6, 2017 Receive a report, hold a discussion, and give staff direction regarding an ordinance prohibiting the use of Engine Compression Brakes within the City of Denton. BACKGROUND Council Member Bagheri requested information concerning an ordinance prohibiting the use of Engine Compression Brakes (commonly referred to as "Jake Brakes") within the City of Denton. This type of braking, used by drivers of semi -truck tractors, utilizes the truck's diesel engine to provide additional braking power. It creates a distinctive sound at a considerable volume. Because of the amount of noise generated, the use of engine brakes is prohibited in a number of communities. As with most traffic -related city ordinances, there will be some portion of drivers that will readily adhere to the law based on the posted warning signs. Enforcing the ordinance will be somewhat difficult. The violation must be detected by a police officer who can readily determine that the violation was committed by a specific truck. On crowded or congested roadways, such as the 135 corridor, this may prove to be problematic given the high volume of semi -truck traffic. For identified violators, the officer would have discretion to issue a warning or a citation for the violation. Based on the language of the proposed ordinance, violations could result in a fine of up to $2,000. In addition to an exemption for official Fire Department apparatus, there is also a provision allowing for a defense to prosecution for emergency use of this braking system. OPTIONS 1. Council can direct staff to bring the draft ordinance back at a future meeting for consideration. 2. Council can direct staff to make additional changes to the draft ordinance. 3. Council can opt to take no action at this time. RECOMMENDATION Staff recommends adoption of the proposed draft ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) April 14, 2017 — Council Status Report April 28, 2017 — Council Status Report FISCAL INFORMATION In order to enforce the ordinance, the City would need to post adequate signage advising of the prohibition on engine braking. Given the number of roadways where commercial truck traffic can legally operate, staff estimates a similar number of signs necessary as were planned for the wireless communications ordinance. That total included approximately 28 signs for TXDOT roadways, and 42 signs for local "high-volume" roads. The cost to acquire and place these 60 signs is estimated to be $10,000. 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: Safe, Liveable & Family -Friendly Community Related Goal: 4.2 Seek clean and healthy neighborhoods in Denton EXHIBITS 1 — Draft Ordinance Respectfully submitted: Lee Howell Chief of Police Prepared by: Lenn Carter Deputy Chief C:\Users\733036\Desktop\Agenda Items\2017 Agenda Items\2 - ORD - Engine Compression Brake Ordinance.docx ORDINANCE AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ADDING SECTION 18-39 OF THE CODE OF ORDINANCES, PROHIBITING THE USE OF ENGINE COMPRESSION BRAKES IN THE CITY; PROVIDING A DEFENSE TO PROSECUTION; PROVIDING THE CULPABLE MENTAL STATE REQUIRED FOR THE COMMISSION OF AN OFFENSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by adding Section 18-39 prohibiting the use of engine compression brakes in the City and which shall read as follows: Sec. 18-39. Use of Engine Compression Brakes Prohibited (a) Definitions. For the purpose of the section, ENGINE COMPRESSION BRAKE means a vehicle retarding device that converts a power producing engine into a power absorbing air compressor in order to reduce motor vehicle speed without the use of the vehicle's foundation brakes. (b) A person commits an offense if he/she uses an engine compression brake to slow or stop a motor vehicle in the city. (c) It is a defense to prosecution under this section that: (1) The motor vehicle was a fire apparatus owned or operated by a governmental entity; or (2) The engine compression brake was used in an emergency situation to prevent or reduce an imminent danger of death, or bodily injury to a person or damage or destruction to property. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person, or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. Page 1 C:\Users\733036\Desktop\Agenda Items\2017 Agenda Items\2 - ORD - Engine Compression Brake Ordinance.docx SECTION 4. Any person found guilty of violating this Ordinance by a court of competent jurisdiction shall be fined a sum not to exceed two thousand dollars ($2,000). SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2017. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-696, Version: 1 AGENDA CAPTION Deliberations regarding Personnel Matters - Under Government Code Section 551.074 Consultation, discussion and deliberation about the duties, responsibilities, evaluation and employment of the position of City Attorney. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEWON Legislation Text File #: ID 17-733, Version: 1 AGENDA CAPTION Deliberations regarding Real Property - Texas Government Code Section 551.072; Consultation with Attorneys - Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the lease and use of 1001 S. Mayhill Rd., Buildings 101 and 102, and 651 S. Mayhill Rd., Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with lease of lease and use of said property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DE TO Legislation Text File #: ID 17-697, Version: 1 Denton Citizen Forester Proclamation City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DE TO Legislation Text File #: ID 17-712, Version: 1 Gay Pride Proclamation City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DE TO Legislation Text File #: ID 17-713, Version: 1 Men's Health Month Proclamation City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DE TO Legislation Text File #: ID 17-698, Version: 1 B.C. Groves regarding the Police Department's refusal to take her complaint. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DE TO Legislation Text File #: ID 17-699, Version: 1 Robert Donnelly regarding trust and confidence in the City. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-628, Version: 1 AGENDA CAPTION Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Cherwell Service Desk Management Software; providing for the expenditure of funds therefor; and providing an effective date (RFP 6321 -awarded to Flycast Partners, Inc. in the three (3) year not -to -exceed amount of $139,827.60). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI EXHIBIT 1 City of Denton AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Mario Canizares DATE: June 6, 2017 SUBJECT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Cherwell Service Desk Management Software; providing for the expenditure of funds therefor; and providing an effective date (RFP 6321 -awarded to Flycast Partners, Inc. in the three (3) year not -to -exceed amount of $139,827.60). FILE INFORMATION The City of Denton's Technology Service Department utilizes a service desk software system to track technology requests made by city employees. A service desk software system is a tool that allows Technology Services staff to provide timely resolutions with a high quality of service through team work and communication. The current service desk system has been in place for over ten (10) years, and has not kept up with industry trends, reducing its usefulness and efficiency over the last few years. Beginning in May 2016, Technology Services staff went through a selection process that identified software alternatives to the current help desk software solution. During the selection process, five possible software candidates were identified. Through the evaluation of the software, the top three were selected for demonstration. Each candidate demonstrated how their software could be utilized by the City to meet the goals of providing the help desk customers with high quality results. Additionally, the software will provide the tools to reduce the time to resolution and to promote staff efficiency. After viewing the demonstrations, conducting reference calls, and reviewing the total cost of ownership, the Cherwell Service Manager was selected as the software solution. Staff moved forward with the preparation of a Request for Proposal. In order to implement a long term contract, Request for Proposal (RFP) 6321 was issued to solicit the marketplace for the Cherwell Service Desk Management Software, training, and implementation services. Request for Proposals were sent to 625 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and placed in the local newspaper. Three (3) responsive proposals were received. Proposals were evaluated based upon published criteria, including price, delivery, compliance with specifications, and probable performance by the supplier. An evaluation team comprised of Technology Services staff from various divisions evaluated the three (3) proposals based on the evaluation criteria. Reference checks and phone interviews were conducted with the vendor's previous customers. Based on the scope of service and enhancements that were discussed during the interviews, the top ranking finalists were asked to submit their Best and Final Offer (BAFO). Additionally, numerous clarifications were requested from the lowest priced respondent, Sigma Software, who has been a Cherwell implementation EXHIBIT 1 partner for less than one year. In their response, Sigma Software noted several times that the implementation will be "out of the box", which indicates there will be no allowances for changes if needed. They, however, indicated that during the design phase, any changes or customization will require extra time that was not a part of their proposal. One of the reference checks did not recommend Sigma Software for implementation due to the extended amount of time and additional costs required to complete the project. Staff made numerous attempts to obtain the complete scope of work, schedule, and pricing that fully reflects the specified requirements of the RFP from Sigma Software to ensure a complete solution was evaluated; however a complete solution was never obtained. Based on the final ranking and scoring by the committee, Flycast Partners, Inc. was ranked the highest and determined to be the best value for the City (Exhibit 1). Flycast Partners, Inc. is a Desoto, Texas based company that is certified as a preferred partner by Cherwell. Additionally, Flycast Partners, Inc. was rated high on performance, project approach, understanding of industry best practices and business processes by other users responding to the reference check. As indicated in Flycast Partners, Inc.'s statement of work, this company is the only respondent who can meet all of the City's stated requirements of the RFP. RECOMMENDATION Technology Services staff recommends awarding to Flycast Partners, Inc. for software and implementation services in the three (3) year not -to -exceed amount of $139,827.60. This amount includes a 10% contingency for additional licenses that may be needed during the contract term. PRINCIPAL PLACE OF BUSINESS Flycast Partners, Inc. DeSoto, 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. The implementation portion of the contract is scheduled for July 17, 2017 through September 31, 2017. FISCAL INFORMATION Funding is budgeted in Technology Services operating account number 830500.6504 for the 2016-2017 fiscal year for the annual subscription costs. The implementation cost will be funded from Technology Services project account 840061744.1365.30100. 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: 1.5 Utilize technology to enhance efficiency and productivity EXHIBIT 1 EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Evaluation and Ranking Sheet Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Galen Gillum, 349-7656 Director of Capital Projects For information concerning this acquisition, contact: Melissa Kraft at 349-7823. o E )|_ : |]® j OE E )|_ |]® ; § § ! ! } \ )|_ |]! r os \ \ 10 § \ $) k 2 \ z w L 2 }°ƒ [ r \ \ \ })� ' `\ e, o E EXHIBIT 3 ORDINANCE NO. 2017 - AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR CHERWELL SERVICE DESK MANAGEMENT SOFTWARE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 6321 -AWARDED TO FLYCAST PARTNERS, INC. IN THE THREE (3) YEAR NOT -TO - EXCEED AMOUNT OF $139,827.60.) WHEREAS, the City has solicited, received, and evaluated competitive sealed proposals for Cherwell Service Desk Management software in accordance with the procedures of State law, and City ordinances; and WHEREAS, the City Manager, or a designated employee has received, 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 I. 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 6321 Flycast Partners, Inc. $139,827.60 (the "Proposal") SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items, and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved, and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with EXHIBIT 3 the terms, conditions, specifications, standards, quantities, and specified sums contained in the Proposal and related documents herein approved and accepted. This will be 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. 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 No. 6321 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 Proposal. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 52017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND FLYCAST PARTNERS, INC. (RFP #6321) THIS CONTRACT is made and entered into this date , by and between FLYCAST PARTNERS, INC., a corporation, whose address is 329 South Elerson Road, DeSoto, Texas 75115, 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 the City's document RFP 6321 — Soply of Cherwell Service Manager and Implementation Services, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Insurance Requirements (Exhibit "D"); (e) Certificate of Interested Parties Electronic Filing (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F" ); (g) Contractor's Proposal (Exhibit "G"); (h) Cherwell End -User Subscription Agreement (Exhibit "H"). These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE CONTRACTOR REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, THE CONTRACTOR DOES NOT EXHIBIT 4 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 ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CONTRACTOR BY: AUTHORIZED SIGNATURE Date: Name: Title: PHONE NUMBER EMAIL ADDRESS TEXAS ETHICS COMMISSION CERTIFICATE NUMBER EXHIBIT 4 CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: TODD HILEMAN CITY MANAGER Date: APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY mm EXHIBIT 4 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $139,827.60. Pricing shall be per Exhibit G attached. 2. Contract Terms The contract term will be one (1) year, effective from the date that the City provides notice of the award to Contractor ("effective date"). The contract shall automatically renew each year on the month and day of the effective date ("renewal date"), unless either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional two (2) one-year periods, subject to the terms herein, without City Council approval. 3. Price Escalation and De-escalation On Contractor's request in the form stated herein, the City will implement an escalation/de- escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Data processing, hosting and related services (PCU5182105182105). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Contractor must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. The Contractor's request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Contractor should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such line 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. The prices in effect prior to the increase request 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: purchasingLcityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. EXHIBIT 4 Exhibit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Contractor. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Contractor. No Terms and Conditions contained in the 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. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and EXHIBIT 4 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 point of delivery shall be that set forth as F.O.B. Destination 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. EXHIBIT 4 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, its 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 EXHIBIT 4 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; 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 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. viii. City shall notify Contractor within fourteen (14) days of failure(s) to the aforementioned reasons for payment witholding and give Contractor the opportunity to cure within fourteen (14) days. 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. EXHIBIT 4 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. 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, EXHIBIT 4 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 I% 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. 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. EXHIBIT 4 Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. THE CONTRACTOR SHALL INDEMNIFY AND HOLD THE CITY HARMLESS FROM AND AGAINST ALL ADVERSE TITLE CLAIMS TO THE DELIVERABLES. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. 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 EXHIBIT 4 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. This provision does not apply if the non- conforming or defective deliverable is due to limitations within the software application. 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, any changes/modifications to the work product once the contractor has completed the SOW, by the City or any other third party will void this warranty, 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. 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective, incomplete, or non -conforming deliverables, the City prefers to accept it, the City may do so. 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 EXHIBIT 4 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 actual damages, costs, losses and expenses, not to exceed the maximum amount of the Contractor's commercial general liability insurance policy, 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 EXHIBIT 4 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. 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. EXHIBIT 4 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. 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. EXHIBIT 4 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 effect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof, and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. THE CONTRACTOR SHALL, AT ITS SOLE EXPENSE, DEFEND, INDEMNIFY, AND HOLD EXHIBIT 4 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. Notwithstanding this paragraph, the City is subject to the public information requirements under chapter 552 of the Texas Government Code and related exceptions. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the EXHIBIT 4 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. 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. EXHIBIT 4 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 inure 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, as it is a Contract personal to the Contractor. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. EXHIBIT 4 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 EXHIBIT 4 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. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded EXHIBIT 4 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. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as EXHIBIT 4 defined by the United States Department of Labor Davis -Bacon Wage Determination at htlp://www.dol.gov/whd/contracts/dbra.htin and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on- site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. CONTRACTOR SHALL INDEMNIFY THE CITY OF DENTON AND SHALL PAY ALL COSTS, PENALTIES, OR LOSSES RESULTING FROM RESPONDENT'S OMISSION OR BREACH OF THIS SECTION. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government -wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 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 EXHIBIT 4 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. Contractor terms and conditions EXHIBIT 4 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 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. ■ Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. EXHIBIT 4 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. EXHIBIT 4 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [ ] 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 EXHIBIT 4 provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. EXHIBIT 4 ATTACHMENT 1 [ ] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate") -A copy of a certificate of insurance, a certificate of authority to self -insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. 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 EXHIBIT 4 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 EXHIBIT 4 b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self -Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. EXHIBIT 4 Exhibit 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: htlps://www.ethics.state.tx.us/whatsnew/elf info forml295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasin(a�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. EXHIBIT 4 ATTACHMENT E -CONFLICT OF INTEREST QUESTIONNAIRE 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. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7' business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 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? Yes E-1 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? Yes E-1 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 March 2, 2017 Signature of vendor doing business with the governmental entity Date LL N N E � N Z C: N aT+ C: U 0 : * N � � N 0 O_ N C O a N C d d � d � C d .- a s � E � a j C w •a` O 6 N o o O o o O n Q m +ry vs vs o o 0 0 y u CL 7 o o 0 o o oo o 0 o O a m O _ o n a 3 p p o`n y y E ov O J � N C C J E � i J OD O J .0 o bD p F o L i � N Ul > o v y O v U = U O O _ Y-O ro J .6 O U C U OC— J O O C O j u �+ C 6 u N u u O > N J > a O O a _ O 9 -p u ap+ _ U N N U O' rOo O _ C y J O 0 E> F viID -6 L u N 00 a O rOa U um M 3 m^ o J U p C' > E N �' '�6 N •O a � = w y C O U u O C O- C C .... O O Q N O t N (N Wo 3 00,p 0 0 po u° v o a o s 3 a J C CE a O i bD � Ul Ul C C O. Y ap+ bD W Q C d E p m N U p p a 6 u> O rho rho ], Y 0 -6 > J O N N d Y 'iO ? Y O O rOo .aL' Q N i U p N u a Q sip+ Vpl Vpl Q Q: p 0=CO Q m a a o E O `O IO Ul Ul Ul p 5.�: °- v v v> a. v vw G Q .. N 0 a 2 M... �i t W r- .0 '0 -o N' v -0 w; u 0 c6 o U, CL F- O w FW- w w j 7 p LL W Q ti w 0 W � H H` Ht N W m ani w W. wz: W EXHIBIT 4 RFP RESPONSE CHERWELL SERVICE MANAGEMENT SOFTWARE & SERVICES For: City Of Denton Materials Management Department 901-6 Texas Street Denton, Texas 76209 REQUEST FOR PROPOSALS RFP 6321 dI)ZlliM ac .P V ?,"),i/I n/ N1Pn Ye,,aer d dd,1 r N Flycast Partners Inc, 329 S Elerson Road, DeSoto, TX 75115 Noel Daniel Account Manager Direct: 817 984 3369 Mobile: 817 880 9065 noel.daniel@flycastpartners.com www.flycastpartners.com EXHIBIT 4 Executive Summary March 2, 2017 Dear members of the Evaluation Team: Flycast Partners would like to thank City of Denton for the opportunity to be considered as your IT Service Management partner. Flycast Partners Inc., and Cherwell Software, LLC are excited about the possibility of partnering with such an impressive organization. Cherwell's tagline, Innovative Technology Built on Yesterday's Values, is indicative of our vision to provide next -generation IT Service Management technology coupled with a brand of service and customer care rarely seen in business in today's business climate. Flycast Partners is committed to providing technology, services and support that ensure the progressiveness, longevity, and success of your service management objectives. We are confident that Cherwell Software will be the last service management solution City of Denton will ever require and we look forward to helping you achieve your organizational goals. As information technology organizations move from the traditional support model towards a proactive and valued "Business Partner" model, it is imperative they build on a foundation that will survive the test of time. Cherwell Service Management (CSM) was architected with this underlying principle. CSM is more than a software application; it includes a framework with built-in workflow and content to support your immediate and future business requirements. Built to incorporate industry best practice standards such as ITIL, CSM not only provides comprehensive "out of the box" functionality, but also has the flexibilityto assist you in becoming a responsive, agile, and proactive organization that can quickly respond to the challenges that arise daily at City of Denton. By utilizing our unique Codeless Business Application Technology (CBAT), City of Dentons' IT department won't require programmers. The end result: Enterprise Power without Enterprise Cost and Complexity. Cherwell utilizes a SaaS 3.0 model which allows both On -Premise and Hosted deployments as well as hybrid deployments (On -Demand deployment and On -Premise pricing as well as On -Premise deployment and On -Demand pricing). As requested, we have provided Cherwell software and services pricing for City of Denton. Flycast Partners has a very clear understanding of your requirements and the work to be accomplished. Upon being awarded the contract, Flycast will perform all services as documented in a mutually agreed upon Statement -Of - Work within the required timeframe. Flycast believes that CSM is a tremendous fit for City of Denton, and look forward to a long term, mutually beneficial relationship with you. On behalf of your team and Flycast Partners and Cherwell Software, we look forward to meeting each and every one of you in person and discussing how to achieve each of your specific objectives. Respectfully, Flycast Partners, Ilnc I:IhoCne: 13:11./ 984 3369 C(.fllll: 13:11./ 880 9065 I:rn7afl: noel.daniel@flycastpartners.com ...............:..................... ...............................X........................i t Etna::.ms.corn 0 A O N -t O_ O Q_ C a) C CL aj a O EXHIBIT 4 EXHIBIT 1- PRICING SHEET T w N N aro N S [D [D O n s [D CD [D N [D G A� [D ig D) cucu ao CD cu C2 - CD [D a [D cu O N [D G A� CD H T x S Cr e�F 1-� v CD H e�F T cn n --i 0 — W C") Z N n .. F+ n .. -.1 0 D 0 r 0 0 coO c rD y Q Q CD rD -s Cr X (D Ci -C3 rD CL cn O fDm N; a ---ir� O - C3 W 3 cn rD y O Z m - o� O _v -a N 0 0 0 u O s h h - rn m h C Q O_ h rD st m rDrD c s o .0 C fCD �. O O T w N N aro N S [D [D O n s [D CD [D N [D G A� [D ig D) cucu ao CD cu C2 - CD [D a [D cu O N [D G A� CD H T x S Cr e�F 1-� v CD H e�F T cn cn cn — W C") N n .. F+ n .. N 0 0 0 Ln Ci cn O v N; p ---ir� O y y y Z m - m rvD _v -a O CL 3 m rD Z rDrD �. p CD c") N m cn rD rD N rD r rCL O O < ,�-. rD � y OTrD � ro Q N O k w � � N W n� N c 3 � O n N 'a o O � i C 7 e�F m n 0 0 0 oo n 0 0 0 CD o 00 0 0 n N v N cn 0 0 0 CD o o 0 0 N io rn CD 0 � C. - s v+ 3 c s � m m m � 3 h — m m � A cn T w N N aro N S [D [D O n s [D CD [D N [D G A� [D ig D) cucu ao CD cu C2 - CD [D a [D cu O N [D G A� CD H T x S Cr e�F 1-� v CD H e�F T EXHIBIT 4 SOLICITATION CHECKLIST Check when Completed Task to be Completed by Respondent Exhibit I — Pricing sheet Review Exhibit 2 — General Provisions and Terms and Conditions 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) Cover sheet Solicitation number Solicitation name Firm name Firm address Contact name Contact phone Contact fax Website address Contact email address Solicitation Checklist Attachment A- Business Overview Questionnaire Document how firm meets minimum qualifications (Section 3) Detail to support evaluation criteria Attachment B — Exception Form N/A Attachment C — Safety Record Questionnaire (if applicable) Attachment D — Reference Form Attachment E — Conflict of Interest Questionnaire Form — with signature Attachment F - Acknowledgment Acknowledgment of Addenda Submission signed by authorized officer, in the orderspecified below N/A Hard Copy Submission: If submitting a hard copy, the City requires one (1) original and three (3) copies, with the pricing sheet submitted electronically in excel or emailed in excel to Ebids a)cit ofdenton.com with the Solicitation # and name in the subject line. Electronic Submission: If submitting an electronic proposal only, email to Ebids(a)cityofdenton.com with the Solicitation # and name in the subject line. The pricing sheet (Exhibit 1) must be in excel format. EXHIBIT 4 ATTACHMENT A -BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contract Information (for formal contracting purposes): The following information will he used to write a contract, should your firm he selected for award. • Firm's Legal Name: Ellycast Partners, Inc. Address: 329 S Elleirson Rd, DeSoto TX 75115 • Agent Authorized to sign contract (Name): Kiiir7rn Gagnon, Director of Operations Agent's email address: kim.gaenon@flycastaartners.com 2.. Subsidiary of. N/A 3. Organization Class (circle): Partnership oirpzoiratiion Individual Association 4. Tax Payer ID#: 45-0664423 5. Date Established: Mair 15, 2011 6. Historically Underutilized Business: Yes or No i.. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes or No, in which? State of Texas 8. Please provide a detailed listing of all products and/or services that your company provides. a. IT Service Mana er nent Software & Services b. IT Asset Mana er nent Software & Services c. Enterprise Service Mana er nent (Process Assessiaiermr/Ern iirneeiriirn /aes-r practice) d. ITIL Education & Simulations 9. Has your company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. (Notice: Failure to disclose this information during proposal submission, and later discovered, may result in contract termination at the Owner's option.) Ellycast Partners Inas no pending litigation and no pending r nateiriall Ile all cllaiir ns against our coir7rnpzany. 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 11. Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). No, 100% success on fir npzller nentations 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? EXHIBIT 4 htlp://www.osha.gov/pls/oshaweb/owasrch.search_ form?p doc !Ype=STANDARDS&p toc level =I&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: 329 S Elerson Rd, DeSoto TX 75115 b. Company's majority owner principle place of business: 329 S Elerson Rd, DeSoto TX 75115 c. Ultimate Parent Company's principle place of business: NA 14. Identify all travel costs associated with onsite implementation work including, but not limited to, the following expenses: transportation, lodging, meals, and sundries. Listed below is estimated travel expenses for a contiguous 3 day onsite engagement. As per the attached sow, two such trips are required forte planning activities. Air Fair - $450 Hotel- $405 @ $135 per night Car- $100 Per Diern- $175 Airport Parking- $70 Gas- $30 Total- $1230 x 2 -trips = $2460 for two 3 day engagements 15. Provide details to support the evaluation criteria, including experience and delivery. Flycast Partners provide best -of -value rrsm solutions., As a Cherwell Preferred Partner operating in North America and Canada, we deliver innovative, cost-effective solutions to sol�ve today's IT Service Mainagennent challenges., -rhe combined expertise and experience of our highly trained professionals deliver and support rrsm solutions based on industry standards and best -practices., Our comprehensive solutions portfolio includes products from the leading rrsm vendors with deployment options ranging from conventional on - premises implementation to our unique on Premise and Managed-S<aS offerings., As premier suppliers of ren -premise and cloud technologies we deliver sustainable change at the right time and at the right cost., While solution providers have come and gone or have changed their way of doing business, we have maintained our customer -focused values despite continuous shifts in technology in the marketplace., Flycast Partners provides a range of services designed to help organizations irrespective of where they are in their rrsm improvement initiative., We are committed to providing services that balance the people, process and technology perspectives unique to every organization., EXHIBIT 4 Flycast Partners works with organizations to identify, implement and continuously improve their delivery of rr Service Management services which increases their return on investment., We align our goals with yours to help you meet and exceed your business objectives., Flycast Pastners has over 50 employees with an average of approximately 10* years in the rrsm industry., We are 100% focused on the Service and Support Industry representing best -of -breed rr service management solutions based on specific customer requirements utilizing Cherwell, Easy Vista, BMC FootPrints, BMC RemedyForce, -rracklt!, and Service Desk Express., Flycast Partners has approximately 250 customers, of which approximately 50 utilize the Cherwell Service Mainagennent platfoirinn. In 2013, 2014 and 2015, IFllycast IPairtineirs was inanned Cherwell Software's #1 1pairtineir in North America in terms of sales and delivery., Flycast Partners is a partner in good standing with Cherwell Software and maintains relationships at the corporate, delivery, and field sales organizational levels., Flycast Partners look forward to including -rhe City of Denton to the representative list of our other Cherwell customers; NASCAR, Epicoir Software, Shasta County, CA, Bank of -the West, %rgiin Ameirica, Innova Systems, Vantage Data Centers, Webster University, D R Horton, Rust-011eum, Lincolln Ellectiric Systems, Lumenate, St. Luke Heall-th Systems, American Heart Association, Menningeir Chnic, Trinity Riveir Eneirgy, Loan Depot, Inallfa Roof Systems, A111hance Heall-thcaire Services, MO S, Foirtna. Many rrsm improvement programs fail when employees struggle to apply a best practice theory to daily work activities and new processes., Getting a technology or compliance program ready for go -live is only half the challenge - and it's generally the easy Ihal�f. Make ino innistake; the transition to ITSM for most IT organizations takes tinne. It's a significant journey that requires not only the adoption of new processes and the technologies to support them, but also behavioral changes in rr staff., -ro ensure a more successful rrsm implementation, our Enablement Methodology includes an incremental, people -oriented approach that provides a solid road on which to make the journey., -(-his road, grounded on rril- principles and built on best in class solutions, offers a structure that guides rr staff in the right direction, facilitating the desired behavioral changes required to meet your rrsM requirements., �' M. A EXHIBIT 4 =I. • IITILawareness workshops • Online or onsite IITI L ceirtiffication courses • ITIL simullation workshops, • Adimilinistiatar and end user training Implementation services Upgrade and r ration suppoirt Remote administration -Custom integrations i Reports and analytics '1171-- . . .. .. .... ... - Best Practice workshops -Assessments& Re-enginieeiing a ConflnuM Service limproveiment prograrns The specific IblIeIrnd of activities fironn ouir einalblennent approach can The tailored to each custonneir's Irequiilrennent and is governed by timeframe/urgency; organizational maturity; in-house technical skill set and budget., Flycast Partners employs a team of trainers, consultants and account managers who have many years combined experience of delivering successful service innainagennent solutions. This team utilizes Flycast's implementation model to ensure we follow best practices for successful solution delivery: Flycast IPairtineir's Client Services team is entirely centered on providing lbest practices in Cherwell solution delivery and aftercare including: • Project Engagement/Management -ream • Implementation Consultancy • Custornization and Integration Services • Education and -training • Software Support/Remote Administration Services Flycast cannot know the schedules and availability of specific consulting resources at the time of engagement until time of contract award with City of Denton., Upon award of the project, Flycast Partners will assign a Senior Consultant and Project Manager., For your reference, we have provided a bio of a typical Cherwell consultant., dimw �. IIPMMN uuIIN Vlr ITSM Souuto ns Consultant EXHIBIT 4 Consultant Sio for John Gross A Consultant with over 20 years of extensive experience in IT Service Management Professional Services, Educations Services and Support Services. Responsible for the entire gamut of the product life cycle including Pre -Sales, Design Workshops, Implementations, Training and on-going customer support of vast customizations and best practices. Using standard and customized ITSM ITIL framework and years of experience to accommodate a wide variety of public and private customers in the Americas, EMEA and APAC. • Design Workshops and ITSM Consulting • Educations Services to both Customers and Principle Partner Boot Camp Instructor • Complete Implementation Management, including Project Management • Wrote complete Educational Manuals for 3 versions BMC SDE for each module of the application suite • Implemented a wide variety of Integrations, using Integration tools as well as MSSQL DTS (pre- 2008) and SQL Integration Services • Custom Report writing expert in both Crystal Reports and MSSQL • Delivered services in English, German and Spanish • Additional conversational skills in Russian and intermediate skills in French and Dutch Baylor University Foreugn Service and German 19' 6 201 Certificate in Linguistics and Language (English end' University of Salzburg, Austria, 100 Germ n) Cherwellll CSM Foundation 201 Cherwellll CSM Basic Design 201 Cherwellll Techniicul Implementer 2013 Hornbill upp c)rtworks Engineer 2012 DMC Software Remedy AR Systerni 7 Admin IPsrt IIII Trainer 2000 DMC Software SDE (formerly Magic), iinclusiive ITSM wiith CMDB 2005 BMC Software Crystal Reports Designer 200D BMC Software Remedy AR Systerni 7 Admin IPsrt IIII Trainer 2000 Network Associates Magic — 4.5 — 0.0 (afterwards GDIE) 200th EXHIBIT 4 ITIPreneurs ITIL Foundation v3 201 Cheurwellll Cherwell Certified Consultant 201 Cherwwellll Accredited Cherwellll Trainer 201 BMC Software ITIL Foundation v1 2004 BMC Software Certified BMC Service Desk Express Consultant (formerly IMlagiic) 2000 201 BMC Software Certified BMC SDE Educational Services Consultant (formerly IMagic) 2000 - 201 BMC Software Accredited IFoet Prints Asset Core Consultant 201 Hombilll Certified Suipportw rks Consultant 2012 McAfee Certified McAfee Help Desk. Instructor 199 SOIL 6.6-2012 IIS Configuration, lincluding Web Sitesand SMITP Settlings. Web Services Publishing and Consuming Windows Servers Configurations Windows Workstations, Configurations Standard Client/Server (Browser Applications Configurations Data Manipullatlion lin MS Access and (Excell Virtual Instruments Completed a project for 4 distinct Service Desks within Cherwell. Designed a solution to support Corporate, Engineers, HR, and Facilities. Each Service Desk maintains their own Service Catalog and Customer base. Also designed integrations with Solar Winds, SCCM and Active Directory. GameStop Project is in progress and requires support for Corporate, Manufacturing and Retail Store Support. Project will include a Configuration Management Database with several interfaces for discovery and automation. Key integrations include SCCM, VMWare Orchestrator, Active Directory, and Bomgar for Chat and Remote Control. Tarrant County Community College Implemented Cherwell Service Management to support Staff and Faculty. Delivered ITSM Design Workshops and completed Design Documentation. Implemented Phase I Processes of Incident, Problem, Service Request Management, Change Management and Service Catalog. Phase 11 will include Asset and Configuration Management which is in progress. Dallas, Texas; Hong Kong; Tel Aviv, Israel; Sao Paolo, Brazil, Berlin, Germany, London, UK 2005 - 2012 Delivered Partner Boot Camps for BMC Software Service Desk Express versions 8 - 10.2 (last SDE Version). Wrote all documentation for the training from version 9.x to 10.x. The Boot Camps were primarily delivered in English but help and some overviews were also provided in German and Spanish. US Navy, (NCDOC - Navy Cyber Defense Operations Command, Norfolk, VA) 2012 Implemented BMC Service Desk Express in the NIPR environment over a 6 month period with on-site escort. This included Incident, Change, Problem, Purchase Requests and CMDB management. Created several integrations to CMDB systems and provided training on all modules to be implemented in SIPR by Navy personnel. Created and delivered a variety of custom Crystal Reports. EXHIBIT 4 National Academy of Sciences (Washington, D.C.) 2011- present Implemented SDE for the IT Department and HR Department, including a variety of integrations and web services applications. The implementation included Incident and Change Management. Continue to provide on-going as - needed application supportfor an end -of -life product. Created and delivered a variety of custom Crystal Reports. City of Garland (Texas) 2000 - present Implemented and customized Magic and then its predecessor Service Desk Express. The application is used by the IT Department of the City of Garland, Facilities, HR, Fire and Police Departments and the city Library system. All modules of SDE were implemented, including Incident, Change, Problem, Work Order, Configuration Management and Purchasing. Created many custom reports as well as a functions and triggers to manage the reporting requirements. Continue to provide on-going as -needed application support for an end -of -life product. NATO Warfare Division (Stavanger, Norway) 2010 Provided BMC SDE Administrator version 9.x training to EM EA staff, both military and civilian, at the Stavanger, Norway IT center. Renaissance Reinsurance (RenRe) (Bermuda and London) 2009 - present Implemented BMC SDE for Incident, Change and Configuration Management for Global Service Desk. Implementation included best practices as well as ITIL requirements and SOX compliance rules and processes. RenRe eventually implemented Hornbill's Supportworks, on which I also became certified and configured the system for go -live and post go -live. Continue to provide services for Supportworks for the London, Dublin and the Bermuda IT centers. EXHIBIT 4 Cherwell Services 011clizo • EXHIBIT 4 The following agreement by and between Flycast Partners ("Flycast" or "Consultant") and City of Denton ("Customer") is a Statement of Work ("SOW") detailing the engagement requested by the Customer to integrate and effectively utilize the Cherwell Software solution ("Software" or "Services") into the Customer's business model. This Statement of Work proposes services for the Customer on the Cherwell product(s). The services include the planning and implementation of the following services/processes: • Incident and Service Request (Service Desk) • Problem Management • Change Management • Self Service Portal • Knowledge Management • Surveys • SCCM & Cisco Call Manager Integration • UAT • Go Live Support Flycast services are designed to advise and train the IT Service Management ("ITSM") Project Team, and Cherwell Administrator(s) on the best practices for their Cherwell solution. The Senior Consultant will review current and future ITSM process(s) and suggest how to best architect and automate the solution. EXHIBIT 4 c )VEri `VEM EXHIBIT 4 SA & CM Design Design Workshop 1.00 SA & CM Documentation Design Documentation 0.50 SA & CM Configuration Configuration 4.00 Go -Live Support Go -Live Support 0.50 Knowledge Management Design Design Workshop 0.50 Knowledae Manaaement Confiauration Confiauration 1.50 Survey Design I Design Workshop 0.50 Survev Confiauration I Confiauration 1.50 Mobile Planning Design Workshop 0.25 Mobile Confiauration Confiauration 0.75 UAT Workshop I UAT Assistance 1 1.00 SCCM Asset Inventory Assistance Design & Configuration 2.00 Cisco Call Manager Screen Pop Desian & Confiauration 1.00 Flvcast Proiect Manaaement I Proiect Manaaement 1 5.00 • The summary listed in the matrix above is intended only to identify what elements will be delivered, not the delivery order. Actual scheduling will be handled by the Customer's Engagement Manager once all required paperwork has been completed. • Data Migration is not included in this estimate. If data migration is required Flycast will setup a separate scoping call to evaluate the requirements. EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Phase,- Implementation Assistance Work Effort: 1-Day(s) —Project Delivery Synopsis: The purpose of this session is assist the Customer with the staging of their Cherwell Service Management Solution. If the Customer required additional environments to be configured additional time will be required, please contact the Engagement Manager if another instance is needed. Delivery Activities: • Install Cherwell Service Management(E) • Configure Cherwell software services • Configure Cherwell Auto -deploy • Test Cherwell software installation • Setup and configure Email and Event Monitor • Setup connectivity to POPS email server and SMTP server. • Configure Event Monitor to receive incoming e-mail to create, update, and close Incidents. • Email notification of assignment to relevant group or technician. • Setup and configure Active Directory • Configure integration with LDAP to load employee/customer table. • Configure Cherwell Users (Technicians) logins for single sign -on. • Setup and configure Scheduler o Configure scheduler for scheduled process. • Setup and configure Auto Deploy o Configure Auto Deploy to install client software. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): Systems Administrator, applicable technical resources for platforn-Vapplication • Coordinate internal Customer resources and logistics for scheduled activities as needed Customer Responsibility - Ensure that internal Customer resources assist with the installation of the Cherwell Service Management application as needed • Plan, manage and execute all internal communications with internal Customer resources Flycast Responsibility Flycast will work with the Customer to stage and provision the Cherwell Service Management product from a SaaS platform. A fully staged CSM application is the deliverable for this session. Security Model Phase,- Plan Work Effort: 0.5-Day(s) —Project Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Security Model design workshop with the Customer's Process Owners to review their desired business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review Customer's documented process • Forms, fields, logic, validation rules for any forms to be implemented • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) ■ Provide approved Business Requirement documentation that details the Customer's Security Model process. These documents can include current policies, processes and work instruction related to the Security Model process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibility logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Security Model Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility 'Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. Incident Management and Request Fulfillment Project Phase, Plan Work Effort: 1-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite design workshop with the Customer's Process Owners to review their desired workflows, and business processes to determine a feasible design for CSM that meets the Customer's business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review out -0f -the -box (OOTB) - discuss gaps between OOTB and desired functionality • Review Customer's documented process(s) • Forms, fields, logic, validation rules for any forms to be implemented • Services, categories, sub -categories • Status codes and descriptions • SLAs or Service Level Targets • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Incident Management and Request Fulfillment process. These documents can include current policies, processes and work instruction related to the Customer's Incident Management and Request Fulfillment process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibility logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Incident Management and Request Fulfillment Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources ■ Flycast will work with the Customer to begin the Planning Workbook based on the feedback and Flycast Responsibility recommendations of the Planning session. The Planning Workbook is the responsibility of the customer to complete, the Customer must obtain the appropriate approvals and will own the document moving forward Problem Management Project Phase: Plan Work Effort: 0.5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Problem Management design workshop with the Customer's Process Owners to review their desired workflows, and business processes to determine a feasible design for CSM that meets the Customer's business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB -discuss gaps between OOTB and desired functionality • Review Customer's documented process(s) EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) • Forms, fields, logic, validation rules for any forms to be implemented • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Problem Management process. These documents can include current policies, processes and work instruction related to the Customer's Problem Management process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibilitv logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Problem Management Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources ■ Flycast will work with the Customer to begin the Planning Workbook based on the feedback and Flycast Responsibilitv recommendations of the Planning session. The Planning Workbook is the responsibility of the customer to complete, the Customer must obtain the appropriate approvals and will own the document moving forward Change Management Project Phase: Plan Work Effort: 1 -Days) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Change Management design workshop with the Customer's Process Owners to review their desired workflows, and business processes to determine a feasible design for CSM that meets the Customer's business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB - discuss gaps between OOTB and desired functionality • Review Customer's documented process(s) • Forms, fields, logic, validation rules for any forms to be implemented • Review approval process(s) • Review impact assessment • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Change Management process. These documents can include current policies, processes and work instruction related to the Customer's Change Management process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibilitv logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Change Management Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources ■ Flycast will work with the Customer to begin the Planning Workbook based on the feedback and Flycast Responsibilitv recommendations of the Planning session. The Planning Workbook is the responsibility of the customer to complete, the Customer must obtain the appropriate approvals and will own the document moving forward Service Asset and Configuration Management (CMDB) Project Phase, Design Workshop Work Effort: 1 -Days) EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Service Asset and CMDB design workshop with the Customer's Process Owners to review their desired workflows, and business processes to determine a feasible design for CSM that meets the Customer's business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB - discuss gaps between OOTB and desired functionality • Forms, fields, logic, validation rules for any forms to be implemented • Determine where data is located in existing systems and how it will be accessed for import or linking into CSM • Determine data mapping between existing systems and CSM • Cl types • Cl attributes • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Service Asset and Configuration Management (CMDB) process. These documents can include current policies, processes and work instruction related to the Customer's Service Asset and Configuration Management (CMDB) process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibility logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Service Asset and Configuration Management (CMDB) Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility 'Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. Self -Service Portal & Service Catalog (Internal) Project Phase, Plan Work Effort: 1-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Self -Service Portal & Service Catalog design workshop with the Customer's Process Owners to review their desired workflows, and business processes to determine a feasible design for CSM that meets the Customer's business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB -discuss gaps between OOTB and desired functionality • Review Customer's documented process • Forms, fields, logic, validation rules for any forms to be implemented • Review link functionality for password reset. • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) ■ Provide approved Business Requirement documentation that details the Customer's Self -Service Portal & Service Catalog processes. These documents can include current policies, processes and work instruction related to the Self -Service Portal process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibility logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Self -Service Portal Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility 'Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. Knowledge Management Project Phase, Design Workshop Work Effort: 0.5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Knowledge Management design workshop with the Customer's Process Owners to review their desired business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB - discuss gaps between OOTB and desired functionality • Review existing knowledge sources and how they will be used with CSM • Review Customer's documented process • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Knowledge Management process. These documents can include current policies, processes and work instruction related to the Knowledge Management process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibility logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Knowledge Management Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility 'Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. Customer Satisfaction Survey Project Phase: Design Workshop Work Effort: 0.5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to conduct an interactive, onsite Customer Satisfaction Survey design workshop with the Customer's Process Owners to review their desired business requirements. Emphasis will be placed on transferring knowledge to customer staff related to best practices in designing and configuring Cherwell to meet their current and on-going requirements. Delivery Activities: • Review OOTB - discuss gaps between OOTB and desired functionality • Review existing survey(syquestions if any • Review Customer's documented process for how to process surveys • Determine design to be used in Cherwell • Determine what will be performed by Flycast and what will be performed by Customer EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Customer Satisfaction Survey process. These documents can include current policies, processes and work instruction related to the Customer Satisfaction Survey process requirements. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and Customer Responsibilitv logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend the Customer Satisfaction Survey Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibilitv Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. System Level "Echo Back" Documentation Project Phase, Documentation Work Effort: 1.5-Day(s) Delivery Synopsis: The purpose of this session is to document the System level configuration that has been proposed in the prior Design Workshops. This documentation will be in Word format. Flycast will provide this information to the Customer, the Customer is responsible for owning and maintaining this documentation once it has been completed. Delivery Activities: • Review and document the results of the prior Design Workshops and provide an output "Echo Back" documentation (in word format) that will be used forthe remaining configuration and implementation engagements. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): Systems Administrator ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for activities as needed Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility Flycast will produce an "Echo Back" word document as described above. Security model Project Phase; Implementation Assistance Work Effort: 0`.5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Design and configure security settings. • Coach Customer on configuration and maintenance of security settings including users, roles, teams, and security groups as identified in the design workshop. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Review the configured functionality to ensure that it meets the Customers expectation Customer Responsibilitv ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources Flycast Responsibility ' Flycast will work with the Customer to review the implemented functionality. This is a Time and Material engagement, Flycast will configure as much of the functionality as time allows. EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Incident Management and Request Fulfillment Project Phase: Implementation Assistance Work Effort: 5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Incident Management and Request Fulfillment with minor modifications to support design developed in the design workshop. • Implement basic SLAs in support of Incident Management and Request Fulfillment. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide the required data needed to populate the applicable tables, forms, emails, etc. needed to configure the process. The Customer must also be available to provide input and make decisions on processes and layouts. Customer Responsibility ■ Coordinate the user acceptance testing team and other internal resources and logistics for testing the configured Incident Management & Request Fulfillment workflow processes. ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources ■ Flycast will work with the Customer to configure the process. This is a Time and Material engagement, Flycast will configure as much of the process as time allows. The configuration will be based on the Design Workshop planning session which is the responsibility of the customer to approve and finalize. Flycast Responsibility ■ Flycast will Coach the Customer's Administration team, as time permits, in how to best configure Cherwell Service Management specific to this session's processes. ■ Flycast is not responsible for data modification, cleansing, or alteration before, during, or after any applicable data being imported. Problem Management Project Phase: Implementation Assistance Work Effort: 2-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Problem Management with minor modifications to support design developed in the design workshop. • Implement basic SLAs in support of Problem Management. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide the required data needed to populate the applicable tables, forms, emails, etc. needed to configure the process. The Customer must also be available to provide input and make decisions on processes and layouts. Customer Responsibility ■ Coordinate the user acceptance testing team and other internal resources and logistics for testing the configured Problem Management workflow process. ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) ■ Flycast will work with the Customer to configure the process. This is a Time and Material engagement, Flycast will configure as much of the process as time allows. The configuration will be based on the Design Workshop planning session which is the responsibility of the customer to approve and finalize. Flycast Responsibility - Flycast will Coach the Customer's Administration team, as time permits, in how to best configure Cherwell Service Management specific to this session's processes. ■ Flycast is not responsible for data modification, cleansing, or alteration before, during, or after any applicable data being imported. Change Management Project Phase; Implementation Assistance Work Effort: 5-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Change Management with minor modifications to support design developed in the design workshop. • Implement basic StAs in support of Change Management. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide the required data needed to populate the applicable tables, forms, emails, etc. needed to configure the process. The Customer must also be available to provide input and make decisions on processes and layouts. Customer Responsibility ■ Coordinate the user acceptance testing team and other internal resources and logistics for testing the configured Change Management workflow process. ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources ■ Flycast will work with the Customer to configure the process. This is a Time and Material engagement, Flycast will configure as much of the process as time allows. The configuration will be based on the Design Workshop planning session which is the responsibility of the customer to approve and finalize. Flycast Responsibility ■ Flycast will Coach the Customer's Administration team, as time permits, in how to best configure Cherwell Service Management specific to this session's processes. ■ Flycast is not responsible for data modification, cleansing, or alteration before, during, or after any applicable data being imported. Service Asset and Configuration Management Database (CMDB) Project Phase: Implementation Assistance Work Effort: 4-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will assist with the implementation of up to 8 OOTB Configuration Item ("Cl") types. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Service Asset and Configuration Management with minor modifications to support design developed in the design workshop. • Implement basic StAs in support of Service Asset and Configuration Management. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) ■ Provide the required data needed to populate the applicable tables, forms, emails, etc. needed to configure the process. The Customer must also be available to provide input and make decisions on processes and layouts. Customer Responsibility - Coordinate the user acceptance testing team and other internal resources and logistics for testing the configured Service Asset and Configuration Management Database (CMDB) workflow processes. ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources ■ Flycast will work with the Customer to configure the process. This is a Time and Material engagement, Flycast will configure as much of the process as time allows. The configuration will be based on the Design Workshop planning session which is the responsibility of the customer to approve and finalize. Flycast Responsibility - Flycast will Coach the Customer's Administration team, as time permits, in how to best configure Cherwell Service Management specific to this session's processes. ■ Flycast is not responsible for data modification, cleansing, or alteration before, during, or after any applicable data being imported. IT Portal (Self Service) Project Phase; Implementation Assistance Work Effort: 2-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Self -Service using dashboards as landing pages with minor modifications to enable users to enter incidents and requests online via the Web interface. • Configure a link to Customer's password reset website. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Review the configured functionality to ensure that it meets the Customers expectation Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility Flycast will work with the Customer to review the implemented functionality. This is a Time and Material engagement, Flycast will configure as much of the functionality as time allows. Service Catalog Project Phase: Implementation Assistance Work Effort: 2-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Service Catalog with minor modifications to support design developed in the design workshop. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Review the configured functionality to ensure that it meets the Customers expectation Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility - Flycast will work with the Customer to review the implemented functionality. This is a Time and Material engagement, Flycast will configure as much of the functionality as time allows. EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Knowledge Management Project Phase: Implementation Assistance Work Effort: 2-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Knowledge Management. • Configure approval process • Set to Read -Only after approval • Configure review process Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Review the configured functionality to ensure that it meets the Customers expectation Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility Flycast will work with the Customer to review the implemented functionality. This is a Time and Material engagement, Flycast will configure as much of the functionality as time allows. Customer Satisfaction Survey Project Phase: Implementation Assistance Work Effort: 1-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to perform implementation assistance of basic out -0f -the -box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's processes requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Implement basic out-of-the-box Customer Satisfaction Surveys • Configure Customer's questions • Configure process to control throttling surveys (how and when surveys get sent) Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide the required data needed to populate the applicable tables, forms, emails, etc. needed to configure the process. The Customer must also be available to provide input and make decisions on processes and layouts. Customer Responsibility ■ Coordinate the user acceptance testing team and other internal resources and logistics for testing the configured Customer Satisfaction Survey. ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources ■ Flycast will work with the Customer to configure the process. This is a Time and Material engagement, Flycast will configure as much of the process as time allows. The configuration will be based on the Design Workshop planning session which is the responsibility of the customer to approve and finalize. Flycast Responsibility • Flycast will Coach the Customer's Administration team, as time permits, in how to best configure Cherwell Service Management specific to this session's processes. ■ Flycast is not responsible for data modification, cleansing, or alteration before, during, or after any applicable data being imported. EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Browser Client & Mobile Device Support Project Phase: Implementation Assistance Work Effort: 1-Day(s) Delivery Synopsis: The purpose for this session is for Flycast to configure the basic Browser Client & Mobile Devices Support out-of-the-box ("OOTB") Cherwell Service Management functionality. Flycast will make as many configuration changes to meet the Customer's requirements as are possible within the time scoped for this session. The Flycast consultant will provide guidance to ensure that any design or configuration requests from the customer are feasible and can be accomplished within the amount of time scoped. Delivery Activities: • Enables technicians to log into Cherwell in a browser (Internet Explorer, Firefox, Safari, etc.) and work with Incidents or any other major business objects (Problems, Changes, etc.). Users can search in an ad-hoc manner or run existing searches, create new records and edit existing records. • Implement basic out-of-the-box support for mobile devices with minor modifications to enable users to work with data from supported mobile devices. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): Systems Administrator ■ Review the configured functionality to ensure that it meets the Customers expectation Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility Flycast will work with the Customer to review the implemented functionality. This is a Time and Material engagement, Flycast will configure as much of the functionality as time allows. UAT Workshop Project Phase: UAT Planning Work Effort: 1 -Day Delivery Synopsis: The purpose of this session is to assist the Customer in the planning of the User Acceptance Testing. While the actual UAT will be done by the Customer this workshop is designed to assist in helping the Customer devise the proper UAT plan and roadmap following best practices and Customer requirements for the various processes Delivery Activities: • Review the current process standing and discuss when the UAT testing should begin. • Work to develop a list of metrics and test requirements that must be met for each process to be successful. • Develop a timeframe for the Customer to perform these tasks. • Discuss remediation of potential problems along with how to put in Change Orders as needed to adjust days within this SOW. • Provide recommendations for the next phase in the Customers environment, if applicable The result of this engagement will be a simple UAT checklist of requirements that must be met for each process (e.g. Service Desk, Change Management, etc... ) to production. PIIbase IlNNote: The actual UAT testing will be performed by the Customer. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator; Workspace Agents, End Customers ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for UAT planning activities as needed Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility ' Flycast will work with the Customer to develop a simple UAT checklist of requirements that must be met in order for each process to begin the transition to production. EXHIBIT 4 as — Staging & Component Provisioning (1 -Instance) Go -Live Support Project Phase; Go -Live Work Effort: 3-Day(s)' Delivery Synopsis: The purpose of this session is to assist the Customer with the "Go -Live" of their fully configured Cherwell Service Management environment. Flycast Senior Consultant will work with the Customer's Administration Team to address any technical or functional issues that may arise during the operational transition. Delivery Activities: • Review the completed process and identify issues that may arise due to the large volume of tickets • Provide functional support and triage technical issues that may arise • Provide best practices recommendations based on end Customer feedback from the implemented process(s) • Provide recommendations for the next phase in the Customers environment, if applicable • Facilitate transition from "engage me nt/p roject" to the appropriate "technical support staff" Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator; Agents, End Customers ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for "Go -Live" activities as needed Customer Responsibility ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources Flycast Responsibility Flycast will work with the Customer to transition their environment from staging to production. This is a Time and Material engagement with nospecific deliverable. EXHIBIT 4 CCM Integrations Project Phase: Design and Configuration Work Effort: 2 -Days) Delivery Activities: • 1 -Day SCCM Integration • 1 -Day Configuration Session - (Standing up CMDB to house the Asset Information) • Determine what will be performed by Flycast and what will be performed by Customer PleaseNote: Scripts (provided by Flycast) must be run on the SCCM SQL server to present the views required by Cherwell. A SQL subject matter expert must be available to do this step at the beginning of this engagement. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Dashboard and Report requirements. These documents can include current reports, and other such metrics related to the Integrations. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend Customer Responsibility the Dashboards and Reports Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources ■ Customer will have Services, Categories, Sub -categories, Default routing teams, Approvers, rules for routing approvals and notifications well defined before the start of the design workshop. ■ Work with Flycast consultant to ensure designs are feasible and can be accomplished within the amount of time scoped. Flycast Responsibility Flycast will work with the Customer during the Design workshop. The Customer is responsible to complete the documentation of the Design workshop. Cisco Call Manager — Screen Pop Project Phase, Design and Configuration Work Effort: 1 -Days) Delivery Activities: • Configure Cherwell to open when an incoming call to Cisco Call Manager comes in. PleaseNote: The Customer will need to provide a Cisco Call Manger subject matter expert (SME) for this engagement. Flycast Consultants are not knowledgeable about Cisco Call Manager. Pk,a seNote: Flycast Partners assumes that Cisco Call Manager has the technical capabilities to initiate a screen pop as described. Flycast Resource(s): Senior Consultant Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Provide approved Business Requirement documentation that details the Customer's Dashboard and Report requirements. These documents can include current reports, and other such metrics related to the Integrations. ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for scheduled activities as needed ■ Ensure that engagement sponsor(s), stakeholder(s), and other internal Customer resources attend Customer Responsibility the Dashboards and Reports Design Workshop session(s) ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholder(s), and other internal Customer resources ■ Customer will have Services, Categories, Sub -categories, Default routing teams, Approvers, rules for routing approvals and notifications well defined before the start of the design workshop. ■ Work with Flycast consultant to ensure designs are feasible and can be accomplished within the amount of time scoped. EXHIBIT 4 CCM Integrations Flycast Responsibility Flycast will work with the Customer's Cisco Call Manager SME to configure Cherwell to open via an incoming call. Project Management Project Phase; Plan Work Effort: 5-Day(s) Delivery Synopsis: For the duration of the engagements as defined within this SOW, Flycast will provide a remote Project Manager to assist the Customer in scheduling services, providing regular updates, and helping manage the engagement. These days are delivered over the course of the engagements defined within this SOW. The Project Manager will also act as the Customer's primary point of contact ("POC") for issue escalation. Delivery Activities: • Project Work Plan: This will consist of tasks to be completed and is broken down by Phase, Summary Tasks, and sub tasks. It will show a visual representation of percentage of task completion and will show scheduled start and end dates for Summary Tasks on the project. It will be provided before the start of the engagements, and updated accordingly throughout the engagement. • Status Report: The Status Report will outline tasks and phases completed since the last update, tasks scheduled to be completed, and list obstacles or roadblocks to the completion of tasks. The Status Report will be provided by PM at a time agreed upon by both Flycast and the Customer. • Action / Issues Loi: This will identify risks to the successful completion of engagements along with proposed solutions to mitigate the risks. The Action/ Issues Log will be provided prior to the start of an engagement. Risks identified by the Consultant after the engagement has started will be addressed to the Customer directly and documented in the Status Report. • Status Calls: The Project Manager will facilitate weekly checkpoint calls. There will also be Milestone calls at the end of the completion of each implemented process. A project meeting is held each reporting interval with the project team and stakeholders to discuss the Status Report and provide an opportunity for questions and answers. Flycast Resource(s): Project Manager Required Resources Customer Resource(s): ITSM Sponsor; Process Owner; Systems Administrator ■ Coordinate internal Customer resources and logistics for scheduled activities ■ Assist with the development of Project Work Plan and with the monitoring and reporting of progress for the engagement Customer Responsibility ■ Coordinate engagement sponsor(s), stakeholder(s), and other internal Customer resources and logistics for scheduled activities as needed ■ Plan, manage and execute all internal communications with engagement sponsor(s), stakeholders , and other internal Customer resources ■ Flycast will work with the Customer to complete the following deliverables, ■ Project Work Plan (at least one) Flycast Responsibility ■ Status Report (as needed) ■ Actions / Issues Logs if applicable) „'�� Rw ,�'"� �,.,i Ir"h"'i h"� lyfffinnammma Unless otherwise noted in this SOW, all work will be performed during customer's normal business hours in the time zone of the location where the work is being delivered. o If the work is being delivered remotely, then delivery time will be agreed upon during the pre -call or sooner. o If work is being delivered remotely and with customers who are in multiple time zones, then a common schedule will be determined either through mutual agreement between the Flycast and the customer project managers during initial scheduling OR through mutual agreement between the Consultant and the customer participants during the pre -call which generally takes place approximately two weeks prior to the engagement. EXHIBIT 4 Minimum Delivery Blot;ks If the work is to be performed onsite, it is assumed that work will be delivered in minimum continuous blocks of eight hours. o If the Flycast Partners Consultant is onsite and available to deliver content, the customer will be billed for the full eight-hour block of time, even if for whatever reason, customer resources are unable to participate. o Also, if customer decides for any reason that the session should be terminated prior to the delivery of the full eight hours, the customer will be billed for the full eight-hour block of time. If the work is to be performed remotely, it is assumed that work will be delivered in minimum continuous blocks of four hours. o If the Flycast Partners Consultant is online and available to deliver content, the customer will be billed for the full four-hour block of time, even if for whatever reason, customer resources are unable to participate. Also, if customer decides for any reason that the session should be terminated prior to the delivery of the full four hours, the customer will be billed for the full four-hour block of time. o Remote engagements must start no later than 15 minutes from the pre -determined start time, and end no later than 15 minutes after the pre -determined end time. Flycast Consultant will be under no obligation to make up time lost if customer is late to join the remote session or if the customer fails to join the session at all. Mist;. Assumptions • This SOW assumes that only the following application(s) are in scope: SaaS Cherwell 8.x . • A test environment will be available and used throughout the entire engagement. • The Customer personnel, hardware, software, and network resources referenced in this SOW remain available and consistent. Changes or unplanned delays due to necessary resources that are unavailable may impact the estimated schedule and cost. • If a product problem is encountered during the course of the engagement that does not impair the defined scope of work, Customer will work with Cherwell Support to resolve the issue. • Unless otherwise specified all configurations will leverage OOTB features and functionality. Customization of the Software underlying core code is out of scope. EXHIBIT 4 Ll Sl 0 I'°n°lIE�II�°�� In order to meet the objectives of this Statement of Work, please review the following requirements as they apply to your engagement: • Fully comply with the latest Cherwell HW\SW requirements. • Ensure a test environment is available and accessible throughout the entire engagement. • If a test environment is not available and a production environment is to be used, it is the Customer's responsibility to notify internal stakeholders of the possibility of unplanned downtime. • Customer is responsible for scheduling the appropriate resources for the planning and training sessions. Flycast Partners can assist with this prior to the engagement starting. • If portions of this engagement are conducted at the Customer's physical location Flycast will require a meeting room with projector and Internet access for those portions. • Provision Flycast Consultant with appropriate access based on Corporate Security policy. • If necessary, provision VPN access to Flycast Consultant to support remote support and configuration. • Provide timely response to requested information, including pre -visit information. wt° II„h°1101t° SEII`VICt° awl Some work may be performed remotely if agreed to by both Flycast Partners and Customer. For approved remote delivery sessions, the customer is required to provide: • A minimum 3 -week notice is required to schedule resources for remote service delivery. • A minimum internet connection of T1, non -fractional must be available for remote service delivery. • A minimum of 4 consecutive hours must be scheduled for remote service delivery. • Any necessary approvals to allow the Consultant to remotely connect to the Customer's application using a VPN or similar connection. • Verification that the remote control functionality on the server as well as any desktops to be used is functional. • Remote engagements must start and end within 15 minutes of the times specified in the confirmation email. r.. li Irrn°.,o � � a Irri d II'M a IP Ell, li a II R w� This Statement of Work reflects a time and materials engagement. We expect completion of the engagement defined in this document at the agreed upon schedule. We are, however, committing only to the length of time specified and are not responsible for failure to deliver specific or anticipated services due to issues with installation, availability of Customer staff or resources (including equipment and network connectivity), verbal or written Customer requested scope changes during the engagement, regardless of cause including but not limited to; improper or inadequate preparation, unknown compatibility or configuration issues, or unplanned or planned conflicting activities. EXHIBIT 4 We will, within reason, modify deliverables at your request and focus our efforts on the item(s) that you deem critical. In doing so, you acknowledge that such changes may impact the delivery of other deliverables. To control changes to the Statement of Work and changes to any previously approved deliverables, the following process will be used: • All Project Change Requests (PCRs) will be submitted in writing. They will describe the change and include whatever rationale and/or estimated effect the change will have on the Statement of Work. • Customer Project Manager and Flycast Partners Project Manager will weigh the merits of the proposed change and approve it for investigation or reject it. • Approved changes will be incorporated into the statement of work through written change authorizations (change orders), as appropriate. • Any changes agreed upon by both parties will be facilitated by this Change Control Process. • Customer is responsible for all penalties and charges resulting from changes to travel plans associated with the requested schedule change. The Project Manager is the liaison and central point of contact for customers, consultants, and partners throughout the service engagement. The Project Manager is responsible for communication between customers and consultant resources/partners to proactively manage expectations on an ongoing basis and ensure customer satisfaction. Specific duties include: • Oversee successful execution of multi -phase, multi -dimensional, multi -resource small to Enterprise customer projects • Thorough understanding of scope • Develop timeline estimates and identify resource requirements to meet deadlines • Secure necessary technical resources • Manage potential risks and delivery quality • Track performance and quality of project deliverables • Ensure that project adheres to timeline • Effectively communicate with project teams, customers, legal, sales and internal SME • Proactively recognize and resolve customer needs EXHIBIT 4 Hours cancelled or rescheduled... Billable Costs ...15 business days or more prior to the Billed at 0% of time and materials cost scheduled engagement dates. Plus actual cost of all non-refundable or change fees incurred for engagement travel expenses. ...6-14 business days prior to the scheduled Billed at 50% of time and materials cost engagement dates. Plus actual cost of all non-refundable or change fees incurred for engagement travel expenses. ... Less than 6 business days prior to the Billed at 100% of time and materials cost scheduled engagement dates. Plus actual cost of all non-refundable or change fees incurred for engagement travel expenses. aYII"rlE EII,I1'rls Flycast Partners will provide weekly invoices for services incurred during the previous week. All Invoices shall include the appropriate purchase order number provided by the Customer. Customers will have fifteen days to dispute invoiced services in writing. Invoices are payable by the Customer 30 days from Invoice. All expenses and travel related expenses will be billed separately and are not included. Some work may be performed remotely if agreed to by both Flycast Partners and Customer. EXHIBIT 4 SIIaIlEiirn°.,oEri11 (D f WO ii°Ilillw.')l["')iia°�v��II ��d (... DiYIIaGIPS Service(s) Cherwell Total Days 45 Product(s) Cherwell Quote # NJCDQ1195 Service Performed By: Flycast Partners, Inc. PO Box 4194 Cedar Hill, TX 75106 Account Manager Noel Daniel (817)984-3369 Service Performed For: City of Denton 215 E. Mckinney St Denton, TX 76201 Customer Contact Curis Conrad (940) 349-7787 This Statement of Work is agreed and accepted by: Flycast Partners, Inc. Signature: Name: Kim Gagnon Title: Director of Operations Date: City of Denton Signature: Name: Title: Date: EXHIBIT 4 16. Provide details on how firm meets the minimum qualifications stated in this Main document Section 3. a. The details must be completed on this form, and shall not point to another document in the respondent's proposal. b. Sip below and return form with final submission. 0 Three (3) years' experience providing similar products or services. Flycast Partners was established in 2011 and focus on providing best -of -value rrsm solutions., As a Cherwell Preferred Partner operating in North America and Canada, we deliver innovative, cost-effective solutions to sollve today's IT Service IMainagennent challenges. The conn1bined expertise and experience of ouir highly trained professionals deliver and support rrsm solutions based on industry standards and best -practices., Our comprehensive solutions portfolio includes products from the leading rrsm vendors with deployment options ranging from conventional on -premises implementation to our unique on Premise and Managed-s<aS offerings., Flycast Pastners has over 50 employees with an average of approximately 10* years in the rrsm industry., We are 100% focused on the Service and Support Industry representing best -of -breed IT service management solutions based on specific customer requirements utilizing Cherwell, Easy Vista, BMC FootPrints, BMC RemedyForce, -rracklt!, and Service Desk Express., Flycast Partners has approximately 250 customers, of which approximately 50 utilize the Cherwell Service Mainagennent platfoirinn. In 2013, 2014 and 2015, IFllycast IPairtineirs was inanned Cherwell Software's #1 1pairtineir in North America in terms of sales and delivery., Flycast Partners is a partner in good standing with Cherwell Software and maintains relationships at the corporate, delivery, and field sales organizational levels., Flycast Partners look forward to including The City of Denton to the representative list of our other Cherwell customers; NASCAR,Epilicoir Software, Shasta County, CA, Bank of -the West, Virgin America, Innova Systems, Vantage Data Centers, Webster Univeirsirty, D R Horton, Rust-011euni, Lincoln Electric Systems, Lunienate, St. Luke Health Systems, American Heart Association, Menningeir Clinic, Trinity River Energy, Loan Depot, Inalfa Roof Systems, Alliance Healthcare Services, MO S, Fortna. • Three (3) references from governmental entities for the products or services requested. The City prefers references from municipalities of similar size. Shasta County Vall Verde Unified Schooll District St Lukes Health Systenis Fulll details for -these references are provided in Attachment D .— References. Due to the increasing number of IRIFIP's that IFllycast IPairtineirs is requested to participate in and to protect ouir clients fironn Ibeiirng contacted lby organizations requesting reference checks, we would respectfully ask that City of Denton do not contact these reference until such time as Flycast Partners is shortlisted. • Authorized manufacturer or distributor authorized by the manufacturer for products identified in the Technical Specifications to sell to the City of Denton, Texas. Attach documentation such as a letter from the manufacturer or a line card. Please see Appendix 2- Certification for details., 0 Approved Cherwell Partner for implementation services. Please see Appendix 2- Certification for details., EXHIBIT 4 • The responding individual or business must be registered in the State of Texas, or the County of Denton, to provide the products or services required in the solicitation, and the individual or business must have all licensure required by the State to provide any services required under this contact. To learn how to obtain information about filing with the State of Texas, or obtaining copies or certificates from the Secretary of State visit Webpage: http://www.sos.state.tx.us/corp/copies.shtml; Phone 512-463-5578; or email corpcert@sos.state.tx.us. FIlycast Partners its registered in -the State of Texas. I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3. 'Cvo' &G'A4ARSd Flycast Partners, Inc March 2, 2017 Signature Company Date EXHIBIT 4 ATTACHMENT B -SUBMISSION EXCEPTIONS/CLARIFICATIONS Any exceptions or clarifications 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 or clarifications, please sign where indicated at the bottom of the page. Item 4 Description P s1 # INo replacorr7orit of defective toridor. Request 1.4 busiricss days to cure ariy riori -coriforryiirig deliverable if coritract tirr7o has e)(pirod Pals jQ # .,' _P �r7arit actiori IDWithhold_Pa-y�r7(rit- u._Coritractor Clkali oris Cc Cb�r7�alatsd- vi- Failure of Coritrsctorto sukaLLiittaroasrirruoic uii_F Failure to_Coar with r IVl t ri l_r uir �r7 rrts._F gu strrotificatiorioffailurestoallowfor correctioriswith iri_1.0 busiriassduaof rictice. Pates 1.9 Iterr7 D. UriwillirigZ irg al( to r aair or r alacs dafactiv or_rrori-coriforrr7irr deliusrable. IN o rralt� if rrorr coriior�r7iri or defective deliverable _isdue to_lirr7itatioris wiithiri the soft aalic tioriN Pates 1.9 #� 22- Warrarit It 1r7_ _VVVarrarit P riod_1m ysarfrorr7scc ataxic _Cohan s to C)_d s frorr7scc atsrics arouid d to chsri ashave laeari mads ka_y C ity to dalivecdb sworktaroduct. -P-aI&L 1 # 3_Accaatsrics Irico�r7falst(2or INori-C;oriforrr7iri ria gtiats rio asrisl if Coifaccaats iricorr7alats or riori -------------------- coriiorLnir dalivarable. Pates 20�- Terrr7iristiori for Cause- rie otiats ria otiats rio�asrisl� for da�r7� �s for loss�d�L-Da �>(p rises etc _________ Olarificatiori: --------------- C I VFF WFI IN SOFTWARE_HOSTING SFF VICoF F�f f FIVE UIVI �Aaaaridi>c �srid C FVFF Vi/FI_I FIVE U ER SUBSCRIPTION CAPTION ACQRFFIVIFIN1__ p_Ejtidi! 4) - The above exceptions and clarifications (and any additional pages identified) are the ONLY exceptions/clarifications 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. ,o& &4*Flycast Partners, Inc March 2, 2017 Signature Company Date No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature Company Date EXHIBIT 4 ATTACHMENT D -REFERENCES 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: Shasta County LOCATION: California CONTACT PERSON AND TITLE: Kile Koschnick, rr Manager -SW Development TELEPHONE NUMBER: Number provided upon being shortlisted SCOPE OF WORK: rril- Simulation, Readiness Assessment and Awareness -rraining; Replaced sunset rrsm system with Cherwell Service Management including onsite Administrative -training and implementation assistance for Incident, Problem, Change and Configuration Management along with a custom purchasing application built on the Cherwell platform CONTRACT PERIOD: 2015 Master Services Agreement for 1 year has been renewed for two additional years REFERENCE TWO GOVERNMENT/COMPANY NAME: Val Verde Unified School District LOCATION: California CONTACT PERSON AND TITLE: Matthew Penner, cro TELEPHONE NUMBER: Number provided upon being shortlisted SCOPE OF WORK: incident, Request management, CMDB/Integration with Dell KALE, HR Request Management, Cherwell Administrator -rraining, Best practice consulting, Reports CONTRACT PERIOD: 2014 REFERENCE THREE GOVERNMENT/COMPANY NAME: St Lukes Health Systems EXHIBIT 4 LOCATION: Idaho CONTACT PERSON AND TITLE: Kelson ONeil, Cherwell Administrator. TELEPHONE NUMBER: Number provided upon being shortlisted SCOPE OF WORK: incident, Problem, Change, CMDB, Knowledge, Self Service and looking to add Cherwell Asset Management CONTRACT PERIOD: 2014 EXHIBIT 4 ATTACHMENT E -CONFLICT OF INTEREST QUESTIONNAIRE 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. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7' business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 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? Yes E-1 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? Yes E-1 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 March 2, 2017 Signature of vendor doing business with the governmental entity Date EXHIBIT 4 ATTACHMENT F -ACKNOWLEDGEMENT 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: htip://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 Received Addendum No 2 Dated Addendum No 3 Dated NAME AND ADDRESS OF COMPANY: Flycast Partners Inc PO Box 4:1.940 Cedar Mill -texas 75106 Tel. No.:1. (844) 359 -. 2278 Email. ICim.,gagnon flycastpartners,com Received Received AUTHORIZED REPRESENTATIVE: Signature ' Iwo' Date March 2, 2017 Name Kim Gagnon TitleDirector of Operations i'ffli NE). 9 n'�7Q0=ZQQ! EXHIBIT 4 APPENDIX 2 - CERTIFICATION Cherwell Software has a global network of valued partners with specialized expertise in IT Service Management and beyond who are committed to providing excellent service from the initial engagement through implementation. These industry experts will guarantee valuable guidance and best practices on how to utilize Cherwell Software to meet your specific business needs. Flycast Partners is a certified implementation partner for Cherwell Software Inc., ry�V yW mndoioiou � L „� ART III Flycast Partners 329 S Elerson Road, DeSoto, TX 75115 1-844-FLYCAST (359-2278) www.flycastpartners.com Flycast Partners provides IT consulting and implementation services to organizations across North America. Our clients remain ahead of the curve on technology adoption while maintaining the basic principles of ITIL and other best practices frameworks in practical, focused projects. We offer on premise and cloud technologies and services that deliver sustainable change at the right time and at the right cost. Our professional services team provides best practice consulting, training, and technical support for ITSM and market vertical solutions. With offices in the United States and Canada, we offer the right tailored solution to all organizations in North America. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-650, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of Ordinances by modifying section 18-73 to change the speed zones on Country Club Road (FM 1830), Teasley Lane (FM 2181), and Fort Worth Drive (US 377); amending sections 18-212 and 18-213 to reduce the school zone speed limits for Guyer High to reflect the new speed limit on Teasley Lane (FM 2181); altering the prima facie speed limits established for vehicles under the provision of transportation code, section 545.356 upon the following roadways, or parts thereof, within the incorporated limits of the City of Denton; providing a penalty not to exceed $200.00 unless the violation occurs in a work zone and then the penalty shall not exceed $400.00; providing a severability clause; providing a repealing clause; providing for publication; and declaring an effective date. The Traffic Safety Commission recommends approval (5-0). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects CM/ ACM: Mario Canizares Date: June 6, 2017 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of Ordinances by modifying section 18-73 to change the speed zones on Country Club Road (FM 1830), Teasley Lane (FM 2181), and Fort Worth Drive (US 377); amending sections 18-212 and 18-213 to reduce the school zone speed limits for Guyer High to reflect the new speed limit on Teasley Lane (FM 2181); altering the prima facie speed limits established for vehicles under the provision of transportation code, section 545.356 upon the following roadways, or parts thereof, within the incorporated limits of the City of Denton; providing a penalty not to exceed $200.00 unless the violation occurs in a work zone and then the penalty shall not exceed $400.00; providing a severability clause; providing a repealing clause; providing for publication; and declaring an effective date. The Traffic Safety Commission recommends approval (5-0). BACKGROUND The primary criterion used in establishing a speed limit is called the 85h percentile speed which is determined by performing a speed study for calculating the speed at which 85 percent of the vehicles are traveling long a given stretch of roadway. The 85th percentile speed has been determined as being the speed at which a prudent driver, given the type of street, will drive that roadway under normal driving conditions. Texas Department of Transportation (TxDOT) recently conducted a speed study (attached) to determine the 85th percentile speed along the following roadway segments; • Teasley Lane (FM 2181) between lH 35 E Southbound Frontage Road and the south/easterly City limits • Fort Worth Drive/US 377 from Lindsey Street to south/westerly City limits • Country Club Drive/FM 1830 from Sanders Road to southerly City limits Teasley Lane (FM 2181) Based on the results of the study, TxDOT recommends the following speed limits along various segments of Teasley Lane (FM 218 1) between lH 35 E Southbound Frontage Road and the south/easterly City limits. From lH 35 E Southbound Frontage Road to Savannah Trail 35 mph From Savannah Trail to 500 feet West of Pennsylvania Drive 45 mph From 500 feet West of Pennsylvania Drive to Lillian Miller Parkway 40 mph From Wind River Lane to south/easterly City limits 45 mph There is a school zone in front of Guyer High School that will impacted due to the proposed change in speed limit along Teasley Lane/FM 2181. TxDOT allows lower school zone speed limits to be set at 15 mph below the regular speed limit of the roadway segment. As such, a speed limit of 30 mph is recommended along the school zone in front of Guyer High School since the regular proposed speed limit along this segment of Teasley Lane/FM 2181 is 45 mph. Fort Worth Drive (US 377) Based on the results of the study, TxDOT recommends the following speed limits along various segments of Fort Worth Drive (US 377) between Lindsey Street and south/westerly City limits. From Lindsey Street to IH 35 E Southbound Frontage Road 35 mph From IH 35 E Southbound Frontage Road to 550 feet north of Massey Road 40 mph From 550 feet north of Massey Road to 250 feet south of Country Club Drive/FM 1830 50 mph From 250 feet south of Country Club Drive/FM 1830 to south/westerly City limits 55 mph Country Club Road (FM 1830) Based on the results of the study, TxDOT recommends reducing the speed limit along Country Club Road/FM 1830 from Sanders Road to southerly City limits to 50 miles per hour (mph) from the existing speed limit of 55 mph. City staff has reviewed the TxDOT speed studies for all three corridors and finds the overall results and recommendations acceptable and consistent with state and federal guidelines. As such, staff requests the City Council to approve the updated speed limits on Teasley Lane (FM 2181), Fort Worth Drive (US 377) and Country Club Road. Traffic Safety Commission agreed on the revised speed limits and recommended 5-0 that Council consider updating the speed limits along Teasley Lane (FM 2181) between IH 35 E Southbound Frontage Road and the south/easterly City limits, along Fort Worth Drive/US 377 from Lindsey Street to south/westerly City limits and along Country Club Drive/FM 1830 from Sanders Road to southerly City limits. OPTIONS 1. Approve the updated speed limits on Teasley Lane (FM 2181), Fort Worth Drive (US 377) and Country Club Road. 2. Reject the proposed speed limits on Teasley Lane (FM 2181), Fort Worth Drive (US 377) and Country Club Road RECOMMENDATION The Traffic Safety Commission considered this item at the May meeting and recommends Option 1 (5-0). ESTIMATED SCHEDULE OF PROJECT It is anticipated the work could be scheduled for completion within a month of Council approval. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Traffic Safety Commission considered this item at the May meeting and recommends Option 1 (5-0). FISCAL INFORMATION The project funding would be covered by existing Operation Budget funding. 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: 4.1 Enhance public safety in the community EXHIBITS 1. 17-650 - AIS 2. TxDOT Speed Study Teasley Lane/FM 2181 3. Map of Teasley Lane/FM 2181 4. TxDOT Speed Study Fort Worth Drive/US 377 5. Map of Fort Worth Drive/US 377 6. TxDOT Speed Study Country Club Road/FM 1830 7. Map of Country Club Road/FM 1830 8. Ordinance Respectfully submitted: Galen Gillum Capital Projects Prepared by: Pritam Deshmukh Traffic Engineer Exhibit 1 AfTexas Department of Transportation 4777 EAST US HIGHWAY 80, MESQUITE, TEXAS 75150-6643 1 214-320-6100 1 ____._W.TXE7QT QQV February 9, 2017 Control: 2054-02 Highway: FM 2181 County: Denton Mr. John Davis City Engineer City of Denton 215 East McKinney Denton, TX 76201 Dear Mr. Davis: Attached for your information and handling is a computer printout of the speed zone study on FM 2181 in the City of Denton. The speed zone study was done after the completion of the reconstruction project and shows that the recommended speeds correspond to the speeds at which the normal and prudent driver is driving under the existing conditions. To proceed with the changing of the speed limits, TxDOT requires a signed city ordinance matching the zones on the speed study. To assist the City in the preparation of the ordinance, a sample speed zone ordinance has been attached to serve as a guide. Please forward the signed ordinance to our office by March 31, 2017 for further processing. Upon receipt of the ordinance from the City of Denton, TxDOT will furnish and install the necessary signs at the proper locations. Should the City already have an ordinance on file that matches the limits shown on the study, please forward a copy of that to our office for our records. If we may be of further assistance, please feel free to contact Bahman Afsheen, P.E. at the above address or by telephone at 214-320-6229. Sincerely, Andrew R. Oberlander, P.E. District Transportation Operations Engineer Attachments cc: Traffic — Speed Zone Folder Heard, Area Engineer IZO Oberlander/Cortez Hudspeth TF OUR VALUES: People - Accountability - Trust - Honesty OUR MISSION: Through collaboration and leadership, we deliver a safe, reliable, and integrated transportation system that enables the movement of people acrd goods. Ari Equal Opport'inity EmpOyer 87 AAFTexas Department of Transportation February 9, 2017 Control: 2054-02 Highway: FM 2181 County: Denton Mr. John Davis City Engineer City of Denton 215 East McKinney Denton, TX 76201 Dear Mr. Davis: Attached for your information and handling is a computer printout of the speed zone study on FM 2181 in the City of Denton. The speed zone study was done after the completion of the reconstruction project and shows that the recommended speeds correspond to the speeds at which the normal and prudent driver is driving under the existing conditions. To proceed with the changing of the speed limits, TxDOT requires a signed city ordinance matching the zones on the speed study. To assist the City in the preparation of the ordinance, a sample speed zone ordinance has been attached to serve as a guide. Please forward the signed ordinance to our office by March 31, 2017 for further processing. Upon receipt of the ordinance from the City of Denton, TxDOT will furnish and install the necessary signs at the proper locations. Should the City already have an ordinance on file that matches the limits shown on the study, please forward a copy of that to our office for our records. If we may be of further assistance, please feel free to contact Bahman Afsheen, P.E. at the above address or by telephone at 214-320-6229. Sincerely, lntL' Andrew R. Oberlander, P.E. District Transportation Operations Engineer Attachments OUR VALUES: People • Accountability • Trust - Honesty OUR MISSION: Through collaboration and leadership, we deliver a safe, reliable, and integrated transportation systern that enables the movement of people and goods. An Equal Opegunity Employer NO. SPEED ZONE ORDINANCE AN ORDINANCE ALTERING THE PRIMA FACIE SPEED LIMITS ESTABLISHED FOR VEHICLES UNDER THE PROVISIONS OF TRANSPORTATION CODE, SECTION 545.356 UPON HIGHWAY NO. . OR PARTS THEREOF, WITHIN THE INCORPORATE LIMITS OF THE CITY OF -,AS SET OUT IN THIS ORDINANCE; AND PROVIDING A PENALTY OF AFINE NOT TO EXCEED $200.00 FOR THE VIOLATION OF THIS ORDINANCE. WHEREAS, Section 545,356 of the Texas Transportation Code, provides that whenever the governing body of the City shall determine upon the basis of an engineering and traffic investigation that any prima facie speed therein set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a street or highway within the City, taking into consideration the width and condition of the pavement and other circumstances on such portion of said street or highway, as well as the usual traffic thereon, said governing body may determine and declare a reasonable and safe prima facie speed limit thereat or thereon by the passage of an ordinance, which shall be effective when appropriate signs giving notice thereof are erected at Such intersection or other place or part of the street or highway; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF , TEXAS: SECTION 1. Upon the basis of an engineering and traffic investigation heretofore made as authorized by the provisions of Transportation Code, Section 545.356, the following prima facie speed lit -nits hereafter indicated for vehicles on the attached Exhibit "A" (strip map) are hereby determined and declared to be reasonable and safe; and such speed lir-nits are hereby fixed at the rate of speed indicated for vehicles traveling upon the named streets and highways, or parts thereof, described as follows: A. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TEXAS: 1. That from and after the date of the passage of this speed zone ordinance, no motor vehicle shall be operated along and upon Highway No. _ within the corporate limits of the City of in excess of speeds now set forth in Exhibit "A". 89 SECTION 2: The Mayor of is hereby authorized to cause to be erected, appropriate signs indicating such speed zones. SECTION 3: Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not to exceed Two Hundred Dollars ($200.00). PASSED AND APPROVED THIS — DAY OF A.D., 20 Mayor City of Attest: City Secretary Texas City of Texas APPROVED AS TO LEGAL FORM: APPROVED: City Attorney City of Texas City Manager City of -... Texas 1, , City Secretary of the City of , Texas, hereby certify that the above and foregoing is a true and correct copy of Ordinance No. adopted by the City Council of the City of , Texas, _ A.D., 20 To certify which, witness my hand and seal of office this day of , A.D., 20 City Secretary City of . .... – Texas Me NsT was Is vim sky v AER was Is vim sky v £6 -- -------- C" z 4.3 1 N I D] M (7v%,Jl FV 17� I -D C' 9 H C.) v "a Ij ISI IS _4 51 1�1111 amn Ml 1 11 7- --1 nrd '4;DIVO I.N38 io 1 1 1 1 ('77-N j µu ft l j:.0 lrv= t16 t 1 L. VII 1;V, v �v ccr rt tHil 'ZOO fo 4 -1i WT Jhl I S6 Iw YAR OL 1 000 sir ski I v two up V00 can W son AMY 0 10 I All Deshmukh, Pritam From: Bahman Afsheen <Bahman.Afsheen@txdot.gov> Sent: Tuesday, April 25, 2017 10:32 AM To: Deshmukh, Pritam Cc: Roxanne Cortez Subject: RE: FM 2181 -Denton County Per our phone conversation and your request, you can rnove the 40 mph speed limit 500' west of Pennsylvania Dr. on I FM 2181 to cover the sidewalk. Please let me know if j�ou need additional informviesmIl kw r1i whenever they are available. From: Deshmukh, Pritam [mailto:Pritam.Deshmukh@cityofdenton.com] Sent: Friday, December 16, 2016 4:19 PM To: Bahman Afsheen Subject: RE: FM 2181 -Denton County From: Bahman Afsheen [mailto:Bahmgp.Afsheen@txdot.gov] Sent: Friday, December 16, 2016 3:49 PM To: Deshmukh, Pritam <Pritam.peshmukh(cDcitvofdentoncom> Subject: RE: FM 2181 -Denton County ZZM= zfflzm��* I BahtnanAfsheen, P.E. Iliffas (Difth.-t-Transportation Operations 4625 T,ast 'Highway So Afesquile, 7Y 751.50 Th. 214-320-6229 Bahnuyn,A�fteett@qdqt.,gov From: Deshmukh, Pritam [mailto:Pritam.Deshmukh@dWgfdgn—tan—.g—o—m] Sent: Wednesday, December 07, 2016 2:45 PM To: Bahman Afsheen Cc: Tina Massey; Roxanne Cortez; Davis, John T. Subject: RE: FM 2181 -Denton County 47 3. Map of Teasley Lane/FM 2181 Exhibit 3 Sys U, ulllllllwnw I IF Soa dllllilb ds Rd Lakes ww +j4�dY. V' @..�( Illltllll f I"f��6 �9X�III III two �iW pp I w ii .�u , � G 5 a^ f Ryan Rd R4"sNI= Rh", 00 e H6iyl^d11°y Im p y k Rd d7u p My R,cj�4UWj tQW?fyrriDr u ti Lin Wim. P Dd AM Rd Ur 99 Exhibit � � ���u� Texas Department of�m���ms��or����mm�wm February 9,2O17 Control: 0081-03,04 H US 377 County: Denton Mr. John Davis City Engineer City ofDenton 215East McKinney Denton, TK702O1 Subject Speed Zones Dear Mr. Davis: Attached for your information and handling is a computer printout of the speed zone study on US 377 in the Cit/ of Denton. The speed zone study was done after the request from TxDOT, Denton Area Office to re-evaluate the speed for the section of US 377 in the City. The printout shows that the r8CDrnnn8nded speeds correspond tothe speeds atwhich the normal and prudent driver isdriving under the existing conditions. To proceed with the changing of the Speed |irUKG. TxD0T requires a signed city ordinance matching the zones Onthe speed study. TOassist the City |nthe preparation ofthe ordinance, asample speed zone ordinance has been attached toserve aaaguide. Please forward the signed ordinance toour office by March 31, 2017 for further processing. Upon receipt of the ordinance from the City Of Denton, TxOOTwi|| furnish and install the necessary signs at the proper |oo8dnnS. Should the City already have an ordinance on file that matches the limits shown on the study, please forward a copy ofthat toour office for our records. If we may be of further BSsist@DCB, p|8@88 feel fn5G to contact B@hnl8n AfSheen, P.E. at the above address or by telephone at 214-320-6229. Sincerely, A� d r e �wR. 0 b oer I a Vnd6etr, JPE. District Transportation Operations Engineer � Attachments OUR VALUES: People -Accuuotamxty- Trust - Honesty OUR MISSION: Through collaboration and leadership, wadeliver asafe, reliable, and integrated transportation system that enables the movement mpeople and goods. An Equal Op%�unity Employer NO. SPEED ZONE ORDINANCE AN ORDINANCE ALTERING THE PRIMA FACIE SPEED LIMITS ESTABLISHED FOR VEHICLES UNDER THE PROVISIONS OF TRANSPORTATION CODE, SECTION 545.356 UPON HIGHWAY NO. OR PARTS THEREOF, WITHIN THE INCORPORATE LIMITS OF THECITY OF AS SET OUT IN THIS ORDINANCE; AND PROVIDING A PENALTY OF A FINE NOT TO EXCEED $200.00 FOR THE VIOLATION OF THIS ORDINANCE. WHEREAS, Section 545.356 of the Texas Transportation Code, provides that whenever the governing body of the City shall determine upon the basis of an engineering and traffic investigation that any prima facie speed therein set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a street or highway within the City, taking into consideration the width and condition of the pavement and other circumstances on such portion of said street or highway, as well as the usual traffic thereon, said governing body may determine and declare a reasonable and safe prima facie speed limit thereat or thereon by the passage of an ordinance, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the street or highway; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF , TEXAS: LITIr" a rakwa Upon the basis of an engineering and traffic investigation heretofore made as authorized by the provisions of Transportation Code, Section 545.356, the following prima facie speed limits hereafter indicated for vehicles on the attached Exhibit "A" (strip map) are hereby determined and declared to be reasonable and safe; and such speed limits are hereby fixed at the rate of speed indicated for vehicles traveling upon the named streets and highways, or parts thereof, described as follows: A. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 111 PAIMMI That from and after the date of the passage of this speed zone ordinance, no motor vehicle shall be operated along and upon Highway No. within the corporate limits of the City of in excess of speeds now set forth in Exhibit "A". 64 SECTION 2: The Mayor of is hereby authorized to cause to be erected, appropriate signs indicating such speed zones. SECTION 3: Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any surn not to exceed Two Hundred Dollars ($200.00). PASSED AND APPROVED THIS DAY OF , A.D., 20 Mayor City of — Texas Attest: City Secretary City of Texas APPROVED AS TO LEGAL FORM: APPROVED: City Attorney City of 0 03M City Manager City of Texas 1, , City Secretary of the City of , Texas, hereby certify that the above and foregoing is a true and correct copy of Ordinance No. adopted by the City Council of the City of , Texas, A.D., 20 To certify which, witness my hand and sea] of office this day of , A.D., 20 City Secretary City of Texas 65 99 69 of %x a i)� 1 r- (Y"H O() "0, � '� f f!,���%liji �� ���jl � ,� ', ;,, � ;,. �,��� , z, ;�, ,, 'I �� i; I'' ��;, �, ��I J � I� I n UD LJ Ci LjJ (] I rlD '_1 i1.:!1311 3 N 1 -1 H'Dl V Vi 21 S�l 600 121 �2 4C I JM�,J)NVOli -)71NACWI7I]M(7l _-- .T. ,4m ICE) wv Ir .......... I n UD LJ Ci LjJ (] I rlD '_1 1 21 121 Ir J 61 L8 Z8 I c � J � . -.v ✓' 4 r d� l II I E F v C1 ry IJ 1 - J. 1 I I l Y J f J If { Y � !✓ L) "I I �I I Lw { I l I I I ( I � I I II ``C yy "I r k CD r!l r5 gPI � I •cvl'r I U7 r LJ I r EfI it I i I rr I rd x j � d ...�. t_..." r, — . - r� j I Ix Iiit is ri r r „. ....... ,_. .,__........ ..............._.. x 1 '• ' �.� jd I— I l x ry .o„an, OE; i'u= v, ƒ Ma oFort Worth Drive/US 377 Exhibit 3 84 Exhibit 1 *4f Texas Department of Transportation 4777 EAST US HIGHWAY 80, MESQUITE, TEXAS 75150-6643 1 214-320-6100 1 WWWJ)(QQ1a0V- January 24, 2017 Control: 1785-01 Highway: FM 1830 County: Denton Mr. John Davis City Engineer City of Denton 215 East McKinney Denton, TX 76201 Subject: Speed Zones Dear Mr. Davis: Attached for your information and handling is a computer printout of the speed zone study on FM 1830 in the City of Denton. The speed study was done after the request from TXDOT, Denton County Area Office to re-evaluate the speed for the section of FM 1830 in Denton County. The printout shows that the recommended speeds correspond to the speeds at which the normal and prudent driver is driving under the existing conditions. To proceed with the changing of the speed limits, TxDOT requires a signed city ordinance matching the zones on the speed study. To assist the City in the preparation of the ordinance, a sample speed zone ordinance has been attached to serve as a guide. Please forward the signed ordinance to our office by March 7, 2017 for further processing. Upon receipt of the ordinance from the City of Denton, TxDOT will furnish and install the necessary signs at the proper locations. Should the City already have an ordinance on file that matches the limits shown on the study, please forward a copy of that to our office for our records. If we may be of further assistance, please feel free to contact Bahman Afsheen, P.E. at the above address or by telephone at 214-320-6229. Sincerely, Andrew R. Oberlander, P.E. District Transportation Operations Engineer Attachments OUR VALUES: People - Accountability - Trust - Honesty OUR MISSION: Through collaboration and leadership, we deliver sale, reliable, and integrated transportation systern that enables the movement of people and goods. An EW,mi Opportnily Ernployo� 56 NO. SPEED ZONE ORDINANCE AN ORDINANCE ALTERING THE PRIMA FACIE SPEED LIMITS ESTABLISHED FOR VEHICLES UNDER THE PROVISIONS OF TRANSPORTATION CODE, SECTION 545.356 UPON HIGHWAY NO. OR PARTS THEREOF, WITHIN THE INCORPORATE LIMITS OF THE CITY OF— AS SET OUT IN THIS ORDINANCE; AND PROVIDING A PENALTY OF A FINE NOT TO EXCEED $200.00 FOR THE VIOLATION OF THIS ORDINANCE, WHEREAS, Section 545.356 of the Texas Transportation Code, provides that whenever the governing body of the City shall determine upon the basis of an engineering and traffic investigation that any prima facie speed therein set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a street or highway within the City, taking into consideration the width and condition of the pavement and other circumstances on such portion of said street or highway, as well as the usual traffic thereon, said governing body may determine and declare a reasonable and safe prima facie speed limit thereat or thereon by the passage of an ordinance, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the street or highway; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF , TEXAS: SECTION I . Upon the basis of an engineering and traffic investigation heretofore made as authorized by the provisions of Transportation Code, Section 545,356, the following prima facie speed limits hereafter indicated for vehicles on the attached Exhibit "A" (strip map) are hereby determined and declared to be reasonable and safe; and such speed lit -nits are hereby fixed at the rate of speed indicated for vehicles traveling upon the named streets and highways, or parts thereof, described as follows: A. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TEXAS: That from and after the date of the passage of this speed zone ordinance, no motor vehicle shall be operated along and upon Highway No. within the corporate limits of the City of in excess of speeds now set forth in Exhibit "A". 51 SECTION 2: The Mayor of is hereby authorized to cause to be erected, appropriate signs indicating Such speed zones. SECTION 3: Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sure not to exceed Two Hundred Dollars ($200.00). PASSED AND APPROVED THIS --- DAY OF A.D., 20� Mayor City of Texas Attest: City Secretary City of Texas APPROVED AS TO LEGAL FORM: APPROVED: City Attorney City Manager City of — Texas City of Texas 1, —, City Secretary of the City of , Texas, hereby certify that the above and foregoing is a true and correct copy of Ordinance No. adopted by the City Council of the City of Texas, . A.D., 20� To certify which, witness my hand and seal of office this day of , A.D., 20 City Secretary City of Texas 52 �,mr __ _.. �J f t's SS 99 11 i LS Iff ff it ff it 29 3. Map of Country Club Road/FM 1830 Country Vi ew Mobile Plaid' JagwPubUcC) Nw a awk D? BeWwood M, Ongmeek IN Hobsi,j,n Ui Rytif Elerw,'itary Sichiod 0 z Goo# 60 Exhibit 3 sllegakour documents\ordinances\17\7-ordinance with amendments tinal.doe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CHAPTER 18 OF THE CODE OF ORDINANCES BY MODIFYING SECTION 18-73 TO CHANGE THE SPEED ZONES ON COUNTRY CLUB ROAD (FM 1830), TEASLEY LANE (FM 2181), AND FORT WORTH DRIVE (US 377) IN SECTION 18-73; AMENDING SECTIONS 18-212 AND 18-213 TO REDUCE THE SCHOOL ZONE SPEED LIMITS FOR GUYER HIGH TO REFLECT THE NEW SPEED LIMIT ON TEASLEY LANE (FM 2181); ALTERING THE PRIMA FACIE SPEED LIMITS ESTABLISHED FOR VEHICLES UNDER THE PROVISION OF "TRANSPORTATION CODE, SECTION 545.356 UPON THE FOLLOWING ROADWAYS, OR PARTS THEREOF, WITHIN THE INCORPORATED LIMITS OF THE CITY OF DENTON; PROVIDING A PENALTY NOT TO EXCEED $200.00 UNLESS THE VIOLATION OCCURS IN A WORK ZONE AND THEN THE PENALTY SHALL NOT EXCEED $400.00; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A REPEALING CLAUSE; PROVIDING FOR PUBLICATION; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Section 545.356 of the Texas Transportation Code provides that whenever the governing body of the City shall determine upon the basis of an engineering and traffic investigation that any prima facie speed therein set forth is greater, or less than is reasonable, or safe under the conditions found to exist at any intersection, or other place, or upon any part of a street, or highway within the City, taking into consideration the width and condition of the pavement, and other circumstances on such portion of said street or highway, as well as the usual traffic thereon, said governing body may determine and declare a reasonable and safe prima facie speed limit thereat, or thereon by the passage of an ordinance, which shall be effective when appropriate signs giving notice thereof are erected at such intersection, or other place or part of the street or highway; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by modifying Section 18-73 regulating speed of vehicles on FM 1830 or Country Club Road. Section 18-73, Item V shall read as follows: V. FM 1830/Country Club Road A. 45 mph From Ft. Worth Drive/377 to Sanders Road. B. 50 mph From Sanders Road to the southerly city limits. SECTION 2. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by modifying Section 18-73 regulating speed of vehicles on FM 2181 or Teasley Lane. Section 18-73, Item VII shall read as follows: VII. FM 2181/Teasley Lane A. 35 mph From IH 35 E Southbound Frontage Road to Savannah Trail. S:ALegal\Our D0cuments\0rdinances\17\7-0rdinance with Amendments final.doc B. 45 mph From Savannah Trail to 500 feet west of Pennsylvania Drive. C. 40 mph From 500 feet west of Pennsylvania Drive to Lillian Miller Parkway. D. 45 mph From Wind River Lane to the southeasterly city limits. SECTION 3. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by modifying Section 18-73 regulating speed of vehicles on US 377 or Fort Worth Drive. Section 18-73, Item XVII shall read as follows: XVII. US 377/Fort Worth Drive A. 35 mph From Lindsey Street to IH 35 E Southbound Frontage Road. B. 40 mph From IH 35 E Southbound Frontage Road to 550 feet north of Massey Road. C. 50 mph From 550 feet north of Massey Road to 250 feet south of Country Club Drive/FM 1830. D. 55 mph From 250 feet south of Country Club Drive/FM 1830 to the south/westerly city limits. SECTION 4. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of the City of Denton, Texas is hereby amended by modifying subparagraph (a) of Section 18-212 to include item (2), and deleting subparagraph (a) (2) of Section 18-213 which shall read as follows: See. 18-212. - Thirty mile -per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A. Transportation Code § 545.357, the prima facie speed limit of thirty (30) miles per hour for vehicles is hereby determined and declared to be prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following school zones: (a) The time periods for reduced speeds for school zones described below shall be when the school zone lights are flashing on school days. The location of school zones described below shall be as follows, to -wit: (1) Ryan High School. Both directions of McKinney Street/FM 426 beginning five hundred (500) feet west of where McKinney Street/FM 426 intersects with the center line of Ryan High School's driveway to five hundred twenty-five (525) feet east of where McKinney Street intersects with the center line of Ryan High School's driveway. (2) Guyer High School. Both directions of Teasley Lane/FM 2181, beginning at TxDOT milepost 0.908 (proximately 1,100 feet south of the centerline of Leatherwood Page 2 of 4 S:ALegal\Our Documents\Ordinances\l7\7-Ordinance with Amendments final.doc Road) to TxDOT milepost 1.323 (proximately 1,090 feet north of the centerline of I.,eatherwood Road). See. 18-213. — Thirty-five mile -per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A. Transportation Code § 545.357, the prima facie speed limit of thirty-five (35) miles per hour for vehicles is hereby determined and declared to be prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following described school zones: (a) The time periods for the reduced speeds for the school zones described below shall be when the school zone lights are flashing on school days. The location of school zones described below shall be as follows, to -wit: (1) The Selwyn School. Both directions of West Highway 380 from four hundred fifty (450) feet east of where West Highway 380 intersects the center line of Marshall Drive to one thousand two hundred (1,200) feet west of where West Highway 380 intersects the center line of Mesa Drive. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not to exceed Two Hundred Dollars ($200.00), unless the violation occurs in a work zone and then the penalty shall not exceed Four Hundred Dollars ($400.00). SECTION 6. This Ordinance shall be cumulative of all other ordinances of the City of Denton defining school zones and school bus loading zones and shall not repeal any of the provisions of said ordinances except in those instances where provisions of those ordinances are in direct conflict with the provisions of this Ordinance. SECTION 7. If in any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 8. This Ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR Page 3 of 4 M SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not to exceed Two Hundred Dollars ($200.00), unless the violation occurs in a work zone and then the penalty shall not exceed Four Hundred Dollars ($400.00). SECTION 6. This Ordinance shall be cumulative of all other ordinances of the City of Denton defining school zones and school bus loading zones and shall not repeal any of the provisions of said ordinances except in those instances where provisions of those ordinances are in direct conflict with the provisions of this Ordinance. SECTION 7. If in any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 8. This Ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR Page 3 of 4 S;AC,egal\Our Documents\Ordinances\l M -Ordinance with Amendments final.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, IN'T'ERIM CITY ATTORNEY BY: Ak Page 4 of 4 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEWON Legislation Text File #: ID 17-651, Version: 1 AGENDA CAPTION Consider adoption of an ordinance authorizing the City Manager to execute a sewer main cost participation agreement between the City of Denton, Texas and Crawford Hospital Partners, LLC for the City's participation in the oversizing of sewer mains and in accordance with the terms and conditions of this ordinance; authorizing the expenditure of funds therefore; and providing an effective date. (In the not -to -exceed amount of $159,680.00) City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hall 411"Avw� 215 E. McKinney Street DENT+Q N Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Wastewater Utilities CM/ ACM: Mario Canizares Date: June 6, 2017 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a sewer main cost participation agreement between the City of Denton, Texas and Crawford Hospital Partners, LLC for the City's participation in the oversizing of sewer mains and in accordance with the terms and conditions of this ordinance; authorizing the expenditure of funds therefore; and providing an effective date. (In the not -to -exceed amount of $159,680.00) BACKGROUND Crawford Hospital Partners, LLC ("Developer") is in the process of installing approximately 2,350 feet of sewer line within the City Limits of Denton (see Exhibit 2). This line is part of the public improvements they are installing as part of their Ranch View Surgical Hospital Development project. The Development project requires a 10" sewer line to be installed from the existing Country Lakes West Development to I35W. The City sought to oversize the pipeline from a 10" to an 18" in accordance with the City's oversize participation policies and procedures outlined in the Denton Development Code. The purpose of the oversize is to continue the existing 18" main westward to facilitate future gravity service to a large sewer shed that extends to, and beyond, Hwy. I -35W. The Developer presented the City with their tabulated calculation of the Oversize Participation Amount (see Exhibit 3). Staff has reviewed the entire tabulation and determined that 1) the quantities are correct, and 2) the unit prices are not unreasonable, based on similar work on other recent projects. Thus, Staff takes no exceptions to the oversize participation cost as prepared by the Developer. Staff has prepared a corresponding Sewer Main Cost Participation Agreement (see Exhibit 4). OPTIONS 1. Approve the Sewer Main Cost Participation Agreement as prepared and submitted by Staff. 2. Reject the Sewer Main Cost Participation Agreement. RECOMMENDATION Staff recommends approval of the Sewer Main Cost Participation Agreement as prepared and submitted. ESTIMATED SCHEDULE OF PROJECT The project is currently under construction. PRIOR ACTION/REVIEW (Council, Boards, Commissions) At the May 8, 2017 Public Utilities Board (PUB) Meeting, the PUB recommended approval of the Development Agreement (7-0). FISCAL INFORMATION The City's financial obligation regarding this item is $159,680.00. There is $200,000 budgeted for oversize participation in the FY 2017 (see Exhibit 5). BID 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: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities EXHIBITS 1. AIS 2. Location Map 3. Tabulated Calculation of the Oversize Participation Amount 4. Sewer Main Cost Participation Agreement 5. FY 2017 CIP Detail Sheet 6. Ordinance Respectfully submitted: Kenneth Banks Director of Utilities Prepared by: Earl A. Escobar, P.E. Engineering Development Review Manager uuuu O O Cfl V C ........ ........................................ .......................... z � o w........z...... LL U) co 0 w U z W H U) U) _ W co D W O d "Ku TOM sft* ftKk x u� W 0 Ir J Q W o m Z 0 Ir Exhibit A BHB Engineering & Surveying 4550 S.H. 360, Suite 180, Grapevine, TX 76051 Tel 817-251-8550, www.bhbinc.com EXHIBIT A - CONTRACTOR'S BID PROPOSAL for Public Improvements to Serve Ranch View Surgical Hospital NE Corner of IH 35W & Crawford Rd, Denton, TX No. Item Description Unit Quantity Unit Price Amount Public Sanitary Sewer Improvements - 18" PVC (Extra Depth) Connect to Ex. Sanitary Sewer Line EA 1 $ 500 $ 500 5' Dia. Sanitary Sewer Manhole EA 13 $ 3,965 $ 51,545 8' External Drop @ Manhole EA 1 $ 8,800 $ 8,800 Water Tight Insert for Sanitary Sewer Manhole EA 12 $ 250 $ 3,000 Bolt Down Frame & Manhole Cover EA 1 $ 450 $ 450 5' Dia. Sanitary Sewer Manhole 0'-6' Depth VF 78 $ 165 $ 12,870 5' Dia. Sanitary Sewer Manhole >6' Depth VF 135 $ 165 $ 22,275 Concrete Collar for SSMH EA 13 $ 225 $ 2,925 18" Sanitary Sewer Line 0'-12' Depth LF 420 $ 55 $ 23,100 18" Sanitary Sewer Line 12'-18' Depth LF 800 $ 65 $ 52,000 18" Sanitary Sewer Line >18' Depth LF 1,130 $ 75 $ 84,750 18" Sanitary Sewer Plug EA 1 $ 500 $ 500 8" Sanitary Sewer Line LF 20 $ 24 $ 480 6" Sanitary Sewer Service Tap EA 7 $ 1,250 $ 8,750 6" Sanitary Sewer Service Line LF 105 $ 60 $ 6,300 6" Sanitary Sewer Cleanout EA 7 $ 325 $ 2,275 4" Sanitary Sewer Service Tap EA 9 $ 1,250 $ 11,250 4" Sanitary Sewer Service Line LF 70 $ 60 $ 4,200 4" Sanitary Sewer Cleanout EA 9 $ 300 $ 2,700 Trench Safety for Excavations 0'-12' Depth LF 420 $ 1 $ 420 Trench Safety for Excavations 12'-18' Depth LF 800 $ 1 $ 800 Trench Safety for Excavations >18' Depth LF 1,130 $ 1 $ 1,130 Post -CCTV Inspection LF 2,350 $ 1 $ 2,350 Vacuum Test SSMH EA 13 $ 100 $ 1,300 Total for Public Sanitary Sewer Improvements= $ 304,670 Page 1 of 2 Exhibit BHB Engineering & Surveying 1/6/2017 4550 S.H. 360, Suite 180, Grapevine, TX 76051 Tel 817-251-8550, www.bhbinc.com CONTRACTOR'S BID PROPOSAL for Public Sanitary Sewer w/o Oversizing Ranch View Surgical Hospital NE Corner of IH 35W & Crawford Rd, Denton, TX No. Item Description Unit Quantity Unit Price Amount Page 2 of 2 Public Sanitary Sewer Improvements -10" PVC (0'-12' Depth) 1 Connect to Ex. Sanitary Sewer Line EA 1 $ 450 $ 450 2 4' Dia. Sanitary Sewer Manhole EA 13 $ 2,035 $ 26,455 3 8" External Drop @ Manhole EA 1 $ 8,800 $ 8,800 4 Water Tight Insert for Sanitary Sewer Manhole EA 12 $ 250 $ 3,000 5 Bolt Down Frame & Manhole Cover EA 1 $ 450 $ 450 6 4' Dia. Sanitary Sewer Manhole 0'-6' Depth VF 78 $ 120 $ 9,360 7 4' Dia. Sanitary Sewer Manhole >6' Depth VF 39 $ 120 $ 4,680 8 Concrete Collar for SSMH EA 13 $ 225 $ 2,925 9 10" Sanitary Sewer Line 0'-12' Depth LF 2,350 $ 26 $ 61,100 10 10" Sanitary Sewer Line 12'-18' Depth LF 0 $ 36 $ - 11 10" Sanitary Sewer Line >18' Depth LF 0 $ 46 $ - 12 10" Sanitary Sewer Plug EA 1 $ 200 $ 200 13 8" Sanitary Sewer Line LF 20 $ 24 $ 480 14 6" Sanitary Sewer Service Tap EA 7 $ 365 $ 2,555 15 6" Sanitary Sewer Service Line LF 105 $ 60 $ 6,300 16 6" Sanitary Sewer Cleanout EA 7 $ 325 $ 2,275 17 4" Sanitary Sewer Service Tap EA 9 $ 340 $ 3,060 18 4" Sanitary Sewer Service Line LF 70 $ 60 $ 4,200 19 4" Sanitary Sewer Cleanout EA 9 $ 300 $ 2,700 20 Trench Safety for Excavations 0'-12' Depth LF 2,350 $ 1 $ 2,350 21 Trench Safety for Excavations 12'-18' Depth LF 0 $ 1 $ - 22 Trench Safety for Excavations >18' Depth LF 0 $ 1 $ - 23 Post -CCTV Inspection LF 2,350 $ 1 $ 2,350 24 Vacuum Test SSMH EA 13 $ 100 $ 1,300 Total for Public Sanitary Sewer Improvements= $ 144,990 Page 2 of 2 THE STATE OF TEXAS § COUNTY OF DENTON § SEWER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND CRAWFORD HOSPITAL PARTNERS, LLC. WHEREAS, Crawford Hospital Partners, LLC, hereinafter referred to as "Developer", whose business address is 251 E. Southlake Blvd., Suite 100, Southlake, Texas 76092 wishes to develop and improve certain real property named "Lots 1-8 of Ranch View Surgical Hospital" (as shown in Exhibit A, attached hereto and incorporated herein by reference), located in the City of Denton, Texas or its extraterritorial jurisdiction, and is required to provide such real property with adequate collection capacity by designing, constructing and installing a sanitary sewer main of an inside diameter of ten inches 10"), hereinafter referred to as the "Required Facilities"; and WHEREAS, the City of Denton, Texas, a Texas home rule municipal corporation with its offices located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as the "City," in accordance with Section 35.21.9 of the Denton Development Code, as amended, and its ordinances, wishes to participate in the cost of the construction and installation of said sanitary sewer main to expand its utility system and insure adequate utility service to other customers; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein the Developer and the City AGREE as follows: 1. Developer shall design, install, and construct approximately 2,350 linear feet of 18 inch off-site sewer main, of which 8 inches of said sewer main shall be eligible for cost participation. The 2,350 linear feet of sewer main, together with 13 new manholes, and all necessary appurtenances thereto, hereafter referred to as the "Oversized Facilities" are as shown on Exhibit B, attached hereto and incorporated herein by reference. 2. As required by Section 35.21.9 of the Denton Development Code, Developer will enter into a Development Contract with the City prior to beginning of construction of the Oversized Facilities. This Development Contract is attached hereto as Exhibit C and is incorporated herewith by reference. This Agreement is subject to and governed by said Development Contract and any other applicable ordinances of the City of Denton, Texas. 3. Prior to beginning of construction of the Oversized Facilities, Developer shall obtain, at Developer's sole cost and expense, all necessary permits, licenses and easements. The easements, deeds, and plats therefor obtained by Developer shall be reviewed and approved as to form and substance by City prior to the beginning of construction. If Developer is unable to acquire needed easements, Developer shall provide City with any requested documentation of efforts to obtain such easements, including evidence of negotiations and reasonable offers made to the affected property owners. Any easements for the Oversized Facilities obtained by the Developer shall be assigned to City, if not taken in City's name, prior to acceptance of the Oversized Facilities, and Developer warrants clear title to such easements and will defend City against any adverse claim made against such title. 4. City's share in the cost of the Oversized Facilities is based upon the difference in the cost of installing Required Facilities, as determined by City, and the cost of the Oversized Facilities, as determined by City, shall be in an amount not to exceed One -Hundred Fifty -Nine Thousand Six - Hundred Eighty and 00/100 ($159,680). City may elect one of the following methods to determine City's share of the cost: a) Developer shall prepare plans and specifications and furnish them to City. City shall competitively bid the required line and the Oversized Facilities in accordance with Chapter 252 of the Texas Local Government Code. The difference in the bids shall be used to determine the City's share, subject to City's maximum participation in cost as specified in this Agreement; or b) Developer shall prepare plans and specifications and take bids on the required line and the Oversized Facilities. City shall pay Developer the least amount of the following: (i) The difference in the bids for the required line and the Oversized Facilities; or (ii) Participation by the City at a level not to exceed One Hundred percent (100%) of the total cost for any oversizing of improvements required by the City, including, but not limited to increased capacity of improvements to anticipate other future development in the area, all as provided for in §212.072(b) of the Texas Local Government Code, as amended: or (iii) $159,680, the maximum participation cost allowed herein. The City shall not, in any case, be liable for any additional cost because of delays in beginning, continuing, or completing construction; changes in the price or cost of materials, supplies, or labor; unforeseen or unanticipated cost because of topography, soil, subsurface, or other site conditions; differences in the calculated and actual per linear feet of pipe or materials needed for the Oversized Facilities; Developers decision as to the contractors or subcontractors used to perform the work; or any other reason or cause, specified or unspecified, relating to the construction of the Oversized Facilities. 5. The City will make monthly payments for its share of the Oversized Facilities. The Developer shall submit monthly pay requests on forms provided by the City. The Developer's engineer shall verify that each pay request is correct. Each pay request, along with the engineer's verification, shall be submitted to the Manager of Wastewater Utilities of the City. The City will retain 10% of the total dollar amount until the project is accepted. Payment by the City to the Developer will be made within thirty (30) days of receipt of the pay estimate and the engineer's verification. 6. To determine the actual cost of the Oversized Facilities, City shall have the right to inspect any and all records of Developer, its agents, employees, contractors or subcontractors, and shall have the right to require Developer to submit any necessary information, documents, invoices, receipts or other records to verify the actual cost of the Oversized Facilities. 7. All notices, payments or communications to be given or made pursuant to this Agreement by the parties hereto shall be sent to Developer at the business address given above and to the Manager of Wastewater Utilities for City at the address given above. 8. Developer shall indemnify and hold City harmless from any and all claims, damages, loss or liability of any kind whatsoever, by reason of injury to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contractors or other persons with regard to the performance of this Agreement; and Developer shall, at its own cost and expense, defend and protect City against any and all such claims and demands. 9. If Developer does not begin substantial construction of the Oversized Facilities within twelve (12) months of the effective date of execution of this Agreement, this Agreement shall automatically terminate without further action of either party. 10. This instrument embodies the entire agreement of the parties hereto and there are no promises, terms, conditions or obligations other than those contained or incorporated herein. This Agreement shall supersede all previous communications, representations or agreements, whether verbal or written, between the parties hereto with respect to the subject matter of this Agreement. 11. This Agreement shall not be assigned by Developer without the express written consent of the City. 12. This Agreement is entered into and performable in Denton County, Texas. Any and all suits for any breach of this Agreement, or any other suit pertaining to or arising out of this Agreement, shall be brought in a court of competent jurisdiction in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Nothing in this Agreement shall be deemed to, or is intended to, waive any defense a party may have at law, including but not limited to immunity. EXECUTED in duplicate original counterparts by the duly authorized officials and officers of the City of Denton, Texas and the Developer, on this the day of , 201 CITY CITY OF DENTON, TEXAS A Texas Home Rule Municipal Corporation UOIN TODD HILEMAN, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY UOIN APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY By: --v ` !, "DEVELOPER" By: CRAWFORD HOSPITAL PARTNERS, LLC A TEXAS LIMITED LIABILITY COMPANY By: _ Name: Title: STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me, the undersigned authority on this day of , 2017, by , the of Crawford Hospital Partners, LLC, in the capacity herein stated and as an act of the company. 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CONTRACT TYPE DR, PV, SW & UT DEVELOPMENT CONTRACT FOR PUBLIC IMPROVEMENTS WHEREAS, - CHP Holdings LLC . (the "Developer"), whose business address is 211 E. Southlake Blvd, St 100 Southl ake . Tx 76092, is the owner and developer of real property located in the corporate limits of the City of Denton being described as Ranch View Surgical Hospital I an addition to the City of Denton, Texas (the "Development"); and WHEREAS, Developer wishes to enter into this agreement with the City of Denton, Texas (the "City) to provide for the construction of certain public improvements generally described as the Public Infrastructure (Demo, Earthwork, Utilities & Paving) as further described in Exhibit A attached hereto and made a part hereof by reference (the "Public Improvements"), which, among other things, are necessitated by and will serve the Development; and WHEREAS, this agreement is entered into pursuant to Subchapter C of Chapter 212 of the Texas Local Government Code as a condition of plat approval and the Public Improvements are roughly proportional to the benefits received and burdens imposed by the Development; and WHEREAS, this agreement is required to ensure that the Public Improvements are constructed in accordance with the City's standard specifications for public works projects, applicable ordinances and design criteria manuals ("Standard Specifications"), and the plans and specifications prepared by Developer's engineer, _ Baird. Hampton & Brown, Inc. ("Developer's Engineer") dated 10/19/16 , which were approved by the City and are on file in the office of the City Engineer, which may be amended with the written approval of the City Engineer or his designee (the Page I of 9 H:\3 -Way Development Contracts\Updated Fonns\Blank Development Agreement -12 -2009 -Indemnification in boldcaps.doex DEVELOPMENT CONTRACT "Project Specifications'), such Standard Specifications and Project Specifications being incorporated herein by reference and herein called the "Plans and Specifications"; and WHEREAS, the Developer understands and agrees that it is responsible for and has retained at its sole expense, the Developer's Engineer to design the Public Improvements in accordance with the Standard Specifications, taking into consideration the specific site conditions that may impact the Public Improvements; and WHEREAS, the Developer shall provide for the construction of the Public Improvements by and through North Texas Contracting, Inc. whose address is 4999 Keller -Haslet Road, Keller, Texas 76244 - (the "Contractor"), a construction contractor experienced in the construction of improvements similar to the Public Improvements, and WHEREAS, Developer and Contractor recognize that the City has an interest in ensuring that the Public Improvements, which will, upon completion and acceptance by the City, become public property, are properly constructed in accordance with the Plans and Specifications and that payment by Developer is provided therefor; NOW, THEREFORE, The Developer, Contractor, and City (the "Parties") in consideration of their mutual promises and covenants contained herein agree as follows: 1. Covenants of Developer and Contractor. (a) Construction. Contractor shall construct the Public Improvements in accordance with the Plans and Specifications and complete the Public Improvements on or before September 30, 2017 - Developer shall be responsible for all monies due to the Contractor for construction of the Public Improvements. In no event shall the City be responsible for payment of any of the expenses or costs to construct the Public Improvements. The City Page 2 of 9 DEVELOPMENT CONTRACT Engineer in his discretion may require the Developer to provide security for payments to the Contractor, which may be in the form of a cash deposit with the City, a letter of credit, a dedicated construction account with a lending institution approved by the City Engineer, or other security that the City Engineer in his discretion deems adequate to ensure that the Developer does not default in its payment obligations to the Contractor. (b) Authority of City Engineer, Inspections, Tests and Orders, Developer and Contractor Warranty. All work on the Public Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide all questions, which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of the Plans and Specifications and may reject any work not performed in accordance with the Plans and Specifications. The Contractor, its surety on the performance bond required herein and the Developer, warrant that the Public Improvements will be free from defects in materials and workmanship and that they will pay to remedy same for a period of two years after the completion of the Public Improvements and final acceptance by the City. This warranty shall not constitute a limitation on the duty to remedy latent defects in construction that were not known at the time of final acceptance or within said two year warranty period. The Contractor shall famish the City Engineer or his representative with every reasonable facility for ascertaining whether or not the work performed was in Page 3 of 9 DEVELOPMENT CONTRACT accordance with the Plans and Specifications applicable thereto. Any work done or materials used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. The City Engineer or his designee shall perform periodic inspections of the work and shall perform a final inspection prior to final acceptance by the City and an inspection 30 days prior to the expiration of two years from the date of final completion and acceptance of the work by the City. Upon failure of the Contractor to allow for inspection, to test materials furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other request or order of the City Engineer or his representative, the City Engineer shall notify the Developer of such failure and may suspend inspections of such work until such failure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the Public Improvements and the City may withhold, suspend or revoke any permits or other approvals for the Development until such matter is remedied to the satisfaction of the City Engineer. (c) Insurance. Contractor shall provide for insurance in form and in substance in accordance with the City's standard insurance requirements for public works projects, which are on file in the Office of the City Engineer and which are incorporated herein by reference. (d) Means and Methods of Construction The means and methods of construction shall be such as Contractor may choose; subject, however, to the Page 4 of 9 DEVELOPMENT CONTRACT City's right to reject the Public Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Public Improvements are constructed in accordance with Plans and Specifications. (e) Books and Records. All of the Developer's and the Contractor's books and other records related to the construction of the Public Improvements shall be available for inspection by the City. (f) Performance Bonds. The Contractor shall execute a performance bond in the full amount of the cost to construct the Public Improvements in favor of the City ensuring completion of the Public Improvements in accordance with the Plans and Specifications and warranting against defects in materials and workmanship for a period of two years from the date of final acceptance by the City as provided in 1(b) herein. The performance bond shall be executed by a corporate surety authorized to do business in Texas in accordance with Chapter 2253 of the Texas Government Code, shall be on the City's standard form, and shall contain a local resident agent for service of process. The Developer may be a co -obligee on the performance bond with regard to the Contractor's obligations. (g) Payment Bonds. The Contractor shall execute a payment bond in the full amount of the cost to construct the Improvements in favor of the City insuring against claims from suppliers and subcontractors. The payment bond shall be executed by a corporate surety authorized to do business in Texas in accordance with Chapter 2253 of the Texas Government Code, shall be on the Page 5 of 9 DEVELOPMENT CONTRACT City's standard form, and shall contain a local resident agent for service of process. Owner and Developer may be co -obligees on the payment bond. (h) Retainage: Final Payments. As security for the faithful completion of the Public Improvements, Contractor and Developer agree that the Developer shall retain ten (10) percent of the total dollar amount of the contract price until after final approval or acceptance of the Public Improvements by the City. The Developer shall thereafter pay the Contractor the retainage, only after Contractor has furnished to the Developer satisfactory evidence including an affidavit that all indebtedness has been paid, that all indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paid or otherwise satisfied. In addition, Contractor shall provide Developer with a consent to final payment from the payment bond surety. (i) Encumbrances. Upon completion and final acceptance of the Public Improvements by the City, the Public Improvements shall become the property of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, after acceptance of the Public Improvements, any claim, lien, charge or encumbrance is made, or found to exist, against the Public Improvements, or land dedicated to the City, to which they are affixed, the Developer and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the City in the amount of such claim, lien, charge or Page 6 of 9 encumbrance, in favor of the City, to ensure payment of such claim, lien, charge or encumbrance. (j) INDEMNIFICATION. THE DEVELOPER AND CONTRACTOR SHALL AND HEREBY DO INDEMNIFY, DEFEND AND SAVE HARMLESS, THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS OR CLAIMS OF ANY CHARACTER, NAME AND DESCRIPTION BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES RECEIVED AS SUSTAINED BY ANY PERSON, PERSONS OR PROPERTY ON ACCOUNT OF THE OPERATIONS OF THE CONTRACTOR, HIS AGENTS, EMPLOYEES OR SUBCONTRACTORS; OR ON ACCOUNT OF ANY NEGLIGENT ACT OF FAULT OF THE CONTRACTOR, His AGENTS, EMPLOYEES OR SUBCONTRACTORS IN CONSTRUCTION OF THE IMPROVEMENTS; AND SHALL PAY ANY JUDGMENT, WITH COSTS, WHICH MAY BE OBTAINED AGAINST THE CITY GROWING OUT OF SUCH INJURY OR DAMAGE. (k) Agreement Controlling. The provisions of this agreement shall control over any conflicting provision of any contract between the Developer and Contractor as to the construction of the Public Improvements. 2. Covenants of City of Denton. Upon proper completion of the Public Improvements in accordance with this agreement, the City agrees to accept the Public Improvements. Page 7 of 9 DEVELOPMENT CONTRACT 3. Nexus and Rough Proportionality. The Developer acknowledges and agrees that there is a reasonable nexus between the demands created by the Development and the Public Improvements, and that the costs associated with the construction and dedication of land for the Public Improvements is roughly proportional to the benefits received and the burdens imposed by the Development. The Developer shall indemnify and bold the City harmless against any claim by it or others claiming through it, that the required Public Improvements and associated dedication of land are unlawful exactions. 4. Venue and Governing Law. The Parties herein agree that this agreement shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this agreement shall be construed in accordance with the laws and court decisions of the State of Texas. 5. Successor and Assigns. This contract shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. Executed in triplicate this, 30th -- day of November 2016 DEVELOPER Name: CHP Holdings, LLC By: Name: Title: Address 251 E. Southlake Blvd, St 100 Southlake, Texas 76092 Page 8 of 9 DEVELOPMENT CONTRACT CONTRACTOR Name:- North Texas Contracting, Inc. By: Name: Zach Fusilier Title: Vice President Address 4999 Keller -Haslet Road Keller, Texas 76244 ATTEST: JENNIFER WALTERS, CITY SECRETARY IN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CITY OF DENTON, TEXAS BY: CITY MANAGER Page 9 of 9 ENb City of Denton"f`"` 2017-2021 CIP Improvements Projects 1 ter utali�"� Project Title: Oversize Wastewater Lines Description: Money allocated to pay the difference in construction cost of increasing wastewater line from the minimum required design size indicated in the subdivision regulation to a larger diameter line size needed in the future for increasing growth in an undeveloped area. Business Unit: 640200 -Wastewater- Collection Project Type: Growth Project Scope: Every Year Project Category Code: 029 -OVERSIZE LINES F.Y. Cost Code Cost Type Funding Source11 Comment Amount 2017 40100 -CONSTRUCTION 1360 -Sub Contract Utility Bonds $200,000 2017 Total: $200,000 2018 40100 -CONSTRUCTION 1360 -Sub Contract Utility Bonds IL $200,000 2018 Total: $200,000 201J401 1360 -Sub Contract Utility Bonds IL $200,000 2019 Total: $200,000 202J401 1360 -Sub Contract Utility Bonds IL $200,000 2020 Total: $200,000 2021 40100 -CONSTRUCTION 1360 -Sub Contract Utility Bonds $200,000 2021 Total: $200,000 Project Total: $1,000,000 Comments: Purpose: Subdivision regulations dictate the minimum required wastewater line size for new development based on projected usage of a newly platted area. During DRC, city will review and agrees to pay additional costs to increase minimum wastewater line size to meet future growth. ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SEWER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND CRAWFORD HOSPITAL PARTNERS, LLC FOR THE CITY'S PARTICIPATION IN THE OVERSIZING OF SEWER MAINS; AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (NOT -TO -EXCEED $159,680.00). WHEREAS, the City desires to participate in the cost of oversizing sewer mains to be designed, installed, and constructed by the owner of the real property, Crawford Hospital Partners, LLC, in an amount not to exceed One -Hundred Fifty -Nine Thousand Six -Hundred Eighty Dollars ($159,680.00), in accordance with the provisions of Section 35.21.9.1 of the Denton Development Code, as amended, and Texas Local Government Code §212.072; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is authorized to execute a "Sewer Main Cost Participation Agreement" between the City of Denton, Texas and Crawford Hospital Partners, LLC, for the oversizing of approximately 2,350 linear feet of ten -inch (10") to eighteen - inch (18") sewer mains; substantially in the form of the attached Agreement, which is incorporated herewith and made a part of this ordinance for all purposes; subject however, to Crawford Hospital Partners, LLC entering into a Development Contract with the City of Denton, in accordance with Section 35.16.20.13 of the Denton Development Code, as amended, of the City of Denton, Texas. SECTION 2. The City Manager is hereby authorized to make the expenditures as set forth in the attached Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. ATTEST: JENNIFER WALTERS, CITY SECRETARY 1 CHRIS WATTS, MAYOR Exlh li Mil 5 APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY By: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEYlf `IN Legislation Text File #: ID 17-668, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City Council of Denton, Texas authorizing the City Manager to execute and deliver a "National Highway System Program Project Agreement for State -Contracted Traffic Signal Construction (With Municipality Providing Limited Materials or Labor)" between the City of Denton and the Texas Department of Transportation, regarding the City's request for reimbursement of the Federal allowable percentage of the cost of installing traffic signal and other items directly related to the operation of the intersection of US 77 and Nicosia Street within the City that are specified in said agreement; providing the City Manager with authority to carry out the rights and duties of the City regarding said agreement; providing the City Manager with authority to expend funds ($38,240.00) therefor; providing an effective date. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I._eggl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects CM/ ACM: Mario Canizares Date: June 6, 2017 SUBJECT Consider adoption of an Ordinance of the City Council of Denton, Texas authorizing the City Manager to execute and deliver a "National Highway System Program Project Agreement for State -Contracted Traffic Signal Construction (With Municipality Providing Limited Materials or Labor)" between the City of Denton and the Texas Department of Transportation, regarding the City's request for reimbursement of the Federal allowable percentage of the cost of installing traffic signal and other items directly related to the operation of the intersection of US 77 and Nicosia Street within the City that are specified in said agreement; providing the City Manager with authority to carry out the rights and duties of the City regarding said agreement; providing the City Manager with authority to expend funds ($38,240.00) therefor; providing an effective date. BACKGROUND The Texas Department of Transportation (TxDOT) has contracted with North Rock Construction LLC to construct the Northwest Denton Park Loop Trail Project. This Transportation Enhancement Project consists of the installation of a pedestrian bridge across Cooper Creek to connect the McKamy Evers subdivision to Evers Parkway, providing a safe route to Evers Elementary School and Evers Park. Additionally, this project will allow the continuation of the Cooper Creek Trail from Evers Elementary School to North Pointe Park, connect to UNT's Discovery Park, and connect to planned bicycle improvements on Windsor Drive at North Lakes Park and existing bicycle routes on Hinkle Drive to US 380. Part of the project involves the installation of traffic signal at the intersection of US 77 with Nicosia Street. The cost of the design and construction of these signals is included in the TxDOT project. However, the City of Denton uses a specific manufacturer's equipment for traffic signal control cabinets, signal controllers, conflict monitors, advanced radar detection and video cameras at traffic signals within the city limits for uniformity of software, parts and maintenance. For this reason, the City will supply the desired equipment for installation by the State (listed in Attachment F of the agreement) at this intersection. The attached agreement provides for the City to be reimbursed for these materials in the total projected amount of $38,240.00. After approval at City Council and execution, the agreement will be routed to TxDOT for further execution. OPTIONS 1. Approve the National Highway System Program Project Agreement for State -Constructed Traffic Signal Construction (With Municipality Providing Limited Materials or Labor). 2. Reject the National Highway System Program Project Agreement for State -Constructed Traffic Signal Construction (With Municipality Providing Limited Materials or Labor). RECOMMENDATION Staff recommends approval of the National Highway System Program Project Agreement for State - Constructed Traffic Signal Construction (With Municipality Providing Limited Materials or Labor) between the City of Denton and the Texas Department of Transportation in the amount of $38,240.00 for the provision of the desired traffic signal equipment at the intersection of US 77 and Nicosia Street. ESTIMATED SCHEDULE OF PROJECT The Northwest Denton Park Loop Trail Project is currently under construction and the traffic signal will be constructed within three months of Council approval of this agreement. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Not applicable. FISCAL INFORMATION The source of funding for the City's preferred equipment is the Traffic Operations department's operating budget which will be reimbursed by TxDOT. BID INFORMATION Not applicable. 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: 4.1 Enhance public safety in the community EXHIBITS 1. National Highway System Program Project Agreement for State -Constructed Traffic Signal Construction (With Municipality Providing Limited Materials or Labor). 2. Ordinance Respectfully submitted: Galen Gillum Director of Capital Projects Prepared by: Pritam Deshmukh Traffic Engineer CSJ # 0918-46-273 District #DAU18 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development STATE OF TEXAS § NATIONAL HIGHWAY SYSTEM (NHS) PROGRAM PROJECT AGREEMENT FOR STATE -CONTRACTED TRAFFIC SIGNAL CONSTRUCTION (WITH A MUNICIPALITY PROVIDING LIMITED MATERIALS OR LABOR) THIS AGREEMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, called the "State," and NCTCOG, a Metropolitan Planning Organization charted under the laws of the State of Texas, acting through the City of Denton, called the "City," acting through its duly authorized officers. WITNESSETH WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 ("ISTEA"), codified under Title 23 USC Section 101 et seq., authorizes a congestion mitigation and air quality improvement ("CMAQ") program, which has been reauthorized under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA—LU"); and WHEREAS, 23 USC §103 establishes a National Highway System ("NHS"); and WHEREAS, 23 USC §134 establishes that Metropolitan Planning Organizations ("MPOs") and the States' Transportation Agencies develop transportation plans and programs for urbanized areas of the State; and WHEREAS, 23 USC §104(b)(1) establishes that funds apportioned to a State under 104(b)(1) for the National Highway System may be obligated for operational improvements for segments of the National Highway System; and WHEREAS, 23 USC §120 establishes the Federal share of funding for NHS programs involving the procurement and installation of traffic signals as defined elsewhere in this agreement; and WHEREAS, the State is empowered under existing laws to operate and maintain a system of highways and roadways for public use and benefit; and WHEREAS, the City has requested the State to reimburse the Federal allowable percentage of the cost of installing traffic signals and other items directly related to the operation of an intersection at the intersections established in this agreement, called the "Project;" and WHEREAS, the Project has been designated as a federal -aid project and, thus, this agreement shall be made in accordance with Federal Highway Administration (FHWA) procedures and regulations; and WHEREAS, the City has offered to participate in the development and construction of the Project Traffic-Traffic_TEA14 Page 1 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development as defined elsewhere in this agreement; and WHEREAS, it is in the best interest of the City and the State for the City to assist the State by furnishing and installing traffic signal equipment on the Project; and WHEREAS, the State will secure the federal cost share, and reimburse the City for their appropriate cost associated with the Project as defined elsewhere in this agreement; and WHEREAS, the Texas Transportation Commission passed Minute Order No. 114585 authorizing the Project through the State Transportation Improvement Program; and WHEREAS, the Governing Body of the City has approved entering into this agreement by resolution or ordinance dated , 20_, labeled Attachment A, which is attached to and made a part of this agreement; and WHEREAS, the State is authorized to enter into an agreement with the City for the Project pursuant to Texas Transportation Code §221.002; NOW THEREFORE, the State and the City agree as follows: AGREEMENT Article 1. Period of this Agreement A. This agreement becomes effective on final execution by both parties and shall remain in effect as long as the traffic signal equipment furnished by the City is in operation at the described location and the signal project is incomplete, or unless otherwise terminated or modified as provided below. Article 2. Scope of Work A. Signal Warranting Data. The City shall collect, prepare, and provide to the State the required warranting and justification data for each signalized intersection contemplated in this agreement. The City shall provide the data to the State in a format approved by the State. Only those intersections that are warranted and approved by the State shall be eligible for signalization under this agreement. B. Intersection Locations. 1. All State -approved intersections which are on routes that are part of the State Highway System are listed in Attachment B, which is attached to and made a part of this agreement. These intersections are referred to as "on -system" intersections. 2. All State -approved intersections which are not on routes that are part of the State Highway System are listed in Attachment C, which is attached to and made a part of this agreement. These intersections are referred to as "off -system" intersections. Traff ic-Traffic—TEAl 4 Page 2 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development C. Design and Construction Responsibilities. 1. The City shall develop the construction plans and specifications associated with the installation of traffic signals at each intersection. The construction plans and specification require final approval by the State. 2. If indicated in the plans and specifications, the furnishing or installing of a portion of the traffic signal equipment may be part of the construction to be undertaken by the City. 3. The City's plans and specifications shall conform to the requirements of the latest edition of the Texas Manual on Uniform Traffic Control Devices (TMUTCD) and use applicable Texas Department of Transportation standard specifications, special specifications, special provisions, and standard sheets. 4. The State will advertise for construction bids, let the construction contract, or otherwise provide for the construction and will supervise the construction as required by the construction plans and specifications. The State will secure the City's concurrence of the construction plans and specifications prior to the award of the construction contract. D. Implementation Plan 1. If the Project includes any traffic signal systems, the City shall attach to this agreement an FHWA-approved Implementation Plan as Attachment D, which is made a part of this agreement. 2. The Implementation Plan shall address the operation and maintenance of the traffic signal systems after the Project is complete. E. Any variations to the Scope of Work are provided in Attachment E, which is attached to and made a part of this agreement. Article 3. Personnel, Equipment, and Material A. The City shall use labor and supervisory personnel employed directly by the City. B. All employees of the City assigned to this agreement shall have sufficient knowledge and experience to enable them to perform the duties assigned to them. C. The State may require the City to remove any employee from the work authorized in this agreement if, in the sole opinion of the State, the work of that employee does not comply with this agreement or the conduct of that employee is detrimental to the Project. D. All materials used for the work shall be new and undepreciated. E. Reimbursement for the use of materials purchased by other than competitive bid procedures will be made only if: 1. Those procedures are shown to be in the public interest; and 2. The State has given prior approval for the use of materials. F. The City shall use City -owned machinery, equipment, and vehicles for the work. In the event that the City does not have the necessary machinery, equipment, and vehicles, they may be rented or leased at the lowest bid price of those submitted by two or more approved bidders. Article 4. Compensation A. The maximum amount reimbursable by the State to the City under this agreement without modification is $38,240.00. A cost estimate of the traffic signal equipment furnished by the Traff ic-Traffic—TEA1 4 Page 3 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development City under this agreement, labeled Attachment F, is attached to and made part of this agreement. B. Reimbursement of Costs to City. The State will reimburse the City for costs incurred under this agreement, provided the City has paid from City funds those obligations previously billed. 1. The State will reimburse the City up to 100% of the cost of furnishing or installing City traffic signal equipment according at the locations described in Attachment B. 2. The State will pay up to 100% of the construction costs at the locations described in Attachment B. 3. The State will reimburse the City up to N/A% of the cost of furnishing or installing City traffic signal equipment according at the locations described in Attachment C. 4. The State will pay up to N/A% of the construction costs at the locations described in Attachment C. 5. The State will reimburse the City for applicable labor, equipment use, materials, supplies, travel expenses, and warehouse or material handling charges. 6. The State will not reimburse unsupported costs, costs incurred prior to the issuance of a written work order by the State, and costs incurred after final acceptance by the State. 7. The State shall make payment to the City within thirty (30) days from the receipt of the City's request for payment contingent upon both: a. The State's: 1) Acceptance of the completed Project; or 2) Partial acceptance by letter, on a quarterly basis, wherever the work; and materials provided have been found by the State to satisfy the requirements of the plans and specifications; and b. The City's submission of an original and four copies of a request for payment: 1) To the following address 4777 E. Highway 80, Mesquite, TX 75150; 2) On the State's Form 132 Billing Statement or other type of invoice acceptable to the State; and 3) That documents the work performed and materials used through descriptions, quantities, unit prices, and extensions. C. City Payments to State. 1. Thirty (30) days prior to the date set for the State to receive construction bids, the City shall remit payment to the state in the amount equal to: a. N/A% of the estimated bid items for locations described in Attachment C; and b. N/A% of the estimated engineering and contingencies (State inspection costs) for the bid items for locations described in Attachment C; and c. N/A% of the estimated State inspection costs for City furnished and/or installed traffic signal equipment for locations described in Attachment C; and d. N/A% of any federal non -participating costs. 2. It is estimated that the State inspection cost will be N/A% of construction cost. 3. The City check or warrant is $N/A. 4. Payments to the State shall be by check or warrant made payable to "Texas Department of Transportation Trust Fund." The check or warrant shall be deposited by Traff ic-Traff ic — TEA1 4 Page 4 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development the State in an escrow account to be managed by the State. Funds in the escrow account may only be applied by the State to the Project. 5. In the event it is determined by the State that the initial amount submitted by the City for construction of the project is insufficient to cover the State's costs, the City will within thirty (30) days from the State's written notification, make additional funding available to the State. 6. Following completion and the State's acceptance of the project, the State will make a final audit of all costs associated with the project. Upon completion of the final audit, any remaining funds due the City will be promptly returned. D. The City shall be responsible for any funds determined to be ineligible for federal reimbursement, and shall reimburse the State the amount of those funds previously provided to it by the State. E. If the City will perform any work under this agreement for which reimbursement will be provided by or through the State, the City must complete training before federal spending authority is obligated. Training is complete when at least one individual who is working actively and directly on the Project successfully completes and receives a certificate for the course entitled Local Government Project Procedures Qualification for the Texas Department of Transportation. The City shall provide the certificate of qualification to the State. The individual who receives the training certificate may be an employee of the City or an employee of a firm that has been contracted by the City to perform oversight of the Project. The State in its discretion may deny reimbursement if the City has not designated a qualified individual to oversee the Project. Article 5. Insurance If this agreement authorizes the City or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 6. Responsibilities of the Parties The State and the City agree that neither party is an agent, servant, or employee of the other party and each party agrees it is responsible for its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. Article 7. Progress A. Communications. The City shall confer with the State during the progress of the Project. The City shall prepare and present all information that is requested by the State or is necessary for the State to evaluate the work performed by the City. Traffic-Traffic—TEA14 Page 5 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development B. Reports. The City shall promptly advise the State in writing of events that may have a significant effect on the progress of the Project. 1. The City shall promptly advise the State in writing of any problems, delays, or adverse conditions that will materially affect the ability to meet scheduled goals. This disclosure will be accompanied by statement of the action taken or contemplated and any State or federal assistance needed to resolve the situation. 2. The City shall also promptly advise the State in writing of favorable developments or events that enable meeting goals sooner than anticipated. Article 8. Inspection of Work A. The State shall make frequent and complete inspection of all materials, equipment, and work to determine and permit certification that: 1. They are in suitable condition for operation and maintenance by the City after completion; and 2. All applicable requirements of the plans and specifications are satisfied. B. The City shall provide opportunities, facilities, and representative samples, as required by the State to perform the above inspections. C. The State will promptly notify the City of any deficiencies determined by the above inspections and the City shall, without delay, take corrective action acceptable to the State. Article 9. Maintenance, Retention, and Audit of Records A. Retention Period. The City shall maintain all books, documents, papers, computer- generated files, accounting records, and all other evidence pertaining to costs incurred and work performed under this agreement, and shall make those materials available at its office during the time period covered and for four years from the date of final payment under this agreement, until completion of all audits, or until pending litigation has been completely and fully resolved, whichever occurs last. B. Availability. The State, FHWA, United States Department of Transportation and its Office of the Inspector General, State Auditor's Office, United States Comptroller General, and any of their authorized representatives shall have access to the records for the purpose of making audits, examinations, excerpts, and transcriptions. C. State Auditor. The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under this agreement or indirectly through a subcontract under this agreement. Acceptance of funds directly under this agreement or indirectly through a subcontract under this agreement acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. D. Audit Timing. The State will prepare an audit: 1. Upon completion of the work authorized or early termination of the agreement to determine the amount of the work performed and materials furnished by the City at that time; and Traffic-Traffic—TEA14 Page 6 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development 2. At any time it is deemed to be in the best interest of the State. Article 10. Disputes The State's decision on disputes regarding the responsibilities and obligations set forth in this agreement shall be final and binding. Article 11. Non -collusion The City shall warrant that it has not employed or retained any company or person, other than a bona fide employee working for the City, to solicit or secure this agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or making of this agreement. If the City breaches or violates this warranty, the State shall have the right to annul this agreement without liability or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover the full amount of the fee, commission, brokerage fee, gift, or contingent fee. Article 12. Termination and Remedies A. Causes. This agreement shall remain in effect until the project is completed and accepted by all parties, unless the agreement is terminated by: 1. Written agreement of the parties; 2. Written notice from either party because the other party did not fulfill its contractual obligations; 3. Written notice from the City, after the completion of preliminary engineering, specifications, and estimates, that it elects not to provide funding; 4. The State if the Project is inactive for thirty-six months or longer and no expenditures have been charged against federal funds; or 5. Thirty (30) days written notice from the State, with or without cause. B. Payments Due After Termination. 1. If the State terminates this agreement, the State shall not be liable for any costs other than those due at the time of termination. 2. If this agreement is terminated under Article 12(A)(3) and the project does not proceed because of insufficient funds, the City shall reimburse the State for its reasonable actual costs incurred during the project. 3. If this agreement is terminated under Article 12(A)(5), the City shall not incur costs during the thirty (30) days after notice is given if those costs are more than the costs incurred during the preceding thirty (30) days. C. Value of Completed Work. The State shall determine the value of any work that has been performed at the time of termination. In determining the compensation for partial work, the State will consider 1. Actual costs incurred in performing the work to the date of termination; 2. The amount of work that was satisfactorily completed as of the date of termination; 3. The value of the work that is usable by the State; 4. The cost to the State of employing others to complete the required work; Traffic-Traffic—TEA14 Page 7 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAU1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development 5. The time required to employ others to complete the work; and 6. Any other factors that affect the value to the State of the work performed. D. Payment of Additional Costs. If this agreement is terminated under Article 12(A)(2), the State may take over the project and complete the work. The City shall be liable to the State for any additional costs to the State caused by the termination. E. Excusable Delays. Except with respect to subcontractors, the City will not be considered in default for any failure that arises out of causes beyond the control and without the negligence of the City. These include acts of God or the public enemy, acts of the Government in its sovereign immunity or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. F. Surviving Requirements. Except for provisions that specifically establish responsibilities that extend beyond the agreement period, termination and payment under this article extinguish the rights, duties, and obligations of the State and the City under this agreement. G. Remedies. 1. Any costs incurred by the State arising from the termination of this agreement under Article 12(A)(2) or (3) shall be paid by the City. 2. This agreement shall not be considered as specifying the exclusive remedy for any default, but all remedies existing at law and in equity may be pursued by either party and shall be cumulative. Article 13. Compliance with Laws A. Compliance Requirement. The parties shall comply with all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of this agreement, including worker's compensation laws, minimum and maximum salary and wage statutes and regulations, nondiscrimination laws, and licensing laws and regulations. B. Proof of Compliance. At the request of the State, the City shall furnish satisfactory proof of its compliance with this article. Article 14. Gratuities A. Employees Not To Benefit. Employees of the State or the City shall not accept any benefits, gifts, or favors from any person doing business with, or who reasonably speaking may do business with the State or the City under this agreement. B. Liabilfity. The State may terminate this agreement if the City or any other person who is doing business with or who reasonably speaking may do business with the State under this agreement offers benefits, gifts, or favors to State employees in violation of this policy. Article 15. Subcontracting A. Prior Approval. The City shall not assign, subcontract, or transfer services related to the work under this agreement without the advance written approval of the State. B. Required Provisions. All subcontracts shall include the provisions contained in this agreement and any other provisions required by law. Traffic-Traffic-TEA14 Page 8 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development C. City Responsibilities. A subcontract does not relieve the City of any responsibilities under this agreement. Article 16. Amendments to this Agreement Any change to one or more of the terms and conditions of this agreement shall not be valid unless made in writing and agreed to by the parties before the change is implemented. Article 17. Legal Construction If any provision in this agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provision of this agreement. In that case, this agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in it. Article 18. Successors and Assigns A. The City and the State bind themselves and their successors and assigns to each other party of this agreement and to the successors and assigns to each other party with regard to all covenants of this agreement. B. The City shall not assign, subcontract, or otherwise transfer its interests in this agreement without the written approval of the State. Article 19. Sole Agreement This agreement constitutes the sole agreement between the parties concerning the Project and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this agreement. Article 20. Debarment Certification The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, "Debarment and Suspension." By executing this agreement, the City certifies that it is not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549 and further certifies that it will not do business with any party that is currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this agreement shall require any party to a subcontract or purchase order awarded under this agreement to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. Article 21. Civil Rights Compliance The City shall comply with the regulations of the United States Department of Transportation as they relate to non-discrimination (49 CFR Part 21 and 23 CFR Part 200), and Executive Order 11246 titled "Equal Employment Opportunity," as amended by Executive Order 11375 and supplemented in the Department of Labor Regulations (41 CFR Part 60). Traffic-Traffic — TEA14 Page 9 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development Article 22. Disadvantaged Business Enterprise (DBE) Program Requirements A. The parties shall comply with the DBE Program requirements established in 49 CFR Part 26. B. The City shall adopt, in its totality, the State's federally approved DBE program. C. The City shall set an appropriate DBE goal consistent with the State's DBE guidelines and in consideration of the local market, project size, and nature of the goods or services to be acquired. The City shall have final decision-making authority regarding the DBE goal and shall be responsible for documenting its actions. D. The City shall follow all other parts of the State's DBE program referenced in TxDOT Form 2395, Memorandum of Understanding Regarding the Adoption of the Texas Department of Transportation's Federally -Approved Disadvantaged Business Enterprise by Entity, and attachments found at web address httiD://fti).dot.state.tx.us/i)ub/txdot- info/bo /de/mou/mou attachments. df. E. The City shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. Department of Transportation (DOT) -assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The City shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non- discrimination in award and administration of DOT -assisted contracts. The State's DBE program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the City of its failure to carry out its approved program, the State may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and the Program Fraud Civil Remedies Act of 1986 (31 USC 3801 et seq.). F. Each contract the City signs with a contractor (and each subcontract the prime contractor signs with a sub -contractor) must include the following assurance: The contractor, sub - recipient, or sub -contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this agreement, which may result in the termination of this agreement or such other remedy as the recipient deems appropriate. Article 23. Procurement and Property Management Standards The parties shall adhere to the procurement standards established in 49 CFR § 18.36 and with the property management standard established in 49 CFR § 18.32. Article 24. Office of Management and Budget (OMB) Cost Principles In order to be reimbursed with federal funds, the parties shall comply with the Cost Principles established in 2 CFR 200 that specify that all reimbursed costs are allowable, reasonable, and allocable to the Project. Traffic-Traffic-TEA14 Page 10 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development Article 25. Lobbying Certification In executing this agreement, each signatory certifies to the best of that signatory's knowledge and belief, that: A. No federal appropriated funds have been paid or will be paid by or on behalf of the parties to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with federal contracts, grants, loans, or cooperative agreements, the signatory for the City shall complete and submit the Federal Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The parties shall require that the language of this certification shall be included in the award documents for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and all sub -recipients shall certify and disclose accordingly. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 USC §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Article 26. Federal Funding Accountability and Transparency Act Requirements A. Any recipient of funds under this agreement agrees to comply with the Federal Funding Accountability and Transparency Act and implementing regulations at 2 CFR Part 170, including Appendix A. This agreement is subject to the following award terms: httr)://www,glp).g,�oy/fd �sys/oka/FR-2010-09-14/pdf/2010-22705.pdf and htti)://www.a ��s/ �/FR-2010-00-14/df/2010-22706.� , lao—ov/fdspdf B. The City agrees that it shall: _- 1. Obtain and provide to the State a Central Contracting Registry (CCR) number (Federal Acquisition Regulation, Part 4, Sub -part 4.1100) if this award provides for more than $25,000 in Federal funding. The CCR number may be obtained by visiting the CCR web -site whose address is: hftr)s-,//www,samaov/portal/r)ublic/SAM/; 2. Obtain and provide to the State a Data Universal Numbering System (DUNS) number, a unique nine -character number that allows the Federal government to track the distribution of federal money. The DUNS number may be requested free of charge for all businesses and entities required to do so by visiting the Dun & Bradstreet on-line registration website htt 1/fed ov.dnbcom/webform; and 3. Report the total compensation and names of its top five executives to the State if: a. More than 80% of annual gross revenues are from the Federal government, and those revenues are greater than $25,000,000; and Traff ic-Traffic—TEAl 4 Page 11 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAU1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development b. The compensation information is not already available through reporting to the U.S. Securities and Exchange Commission. Article 27. Single Audit Report A. The parties shall comply with the requirements of the Single Audit Act of 1984, P.L. 98-502, ensuring that the single audit report includes the coverage stipulated in 2 CFR 200. B. If threshold expenditures of $750,000 or more are met during the City's fiscal year, the City must submit a Single Audit Report and Management Letter (if applicable) to TxDOT's Audit Office, 125 E. 11 th Street, Austin, TX 78701 or contact TxDOT's Audit Office at ntact.html. C. If expenditures are less than $750,000 during the City's fiscal year, the City must submit a statement to TxDOT's Audit Office as follows: "We did not meet the $750,000 expenditure threshold and therefore, are not required to have a single audit performed for FY D. For each year the project remains open for federal funding expenditures, the City will be responsible for filing a report or statement as described above. The required annual filing shall extend throughout the life of the agreement, unless otherwise amended or the project has been formally closed out and no charges have been incurred within the current fiscal year. Article 28. Notices All notices to either party by the other under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid, addressed to the other party at the following addresses: City State City of Denton Texas Department of Transportation Attn: Traffic Attn: District Engineer 901 -A Texas Street 4777 E. Highway 80 Denton , TX 76209 Mesquite, All notices shall be deemed given on the date delivered or deposited in the mail. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that notices shall be delivered personally or by certified U.S. mail, and the request shall be carried out by the other party, Article 29. Signatory Warranty Each signatory warrants that the signatory has necessary authority to execute this agreement on behalf of the entity represented. Traff ic-Traffic—TEA1 4 Page 12 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development THIS AGREEMENT IS EXECUTED by the State and the City in duplicate. THE CITY Signature Type or Printed Name Title Date THE STATE OF TEXAS Signature James K. Selman, P.E. Type or Printed Name Dallas District Engineer Title Date Traff ic-Traff ic — TEA14 Page 13 of 13 Revised 03/28/2016 NHS:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development ATTACHMENT A CITY RESOLUTION OR ORDINANCE Traffic-Traffic—TEA1 4 Page 1 of 1 Attachment A CMAQ:FED STATE LETTING CBJ#O918-4G-273 District #0AU18 Code Chart G4#114OD Project: US 77 at Nicosia St. Federal Highway Administration CFDANo.:2O.2O5 Not Research and Development ATTACHMENT B US 77 AT NICOSIA STREET Traffi 14 Page 1 of 1 A1tacjlDleDtB CSJ # 0918-46-273 District #DAU1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development Mig NONE Traff ic-Traff ic—TEA 14 Page 1 of 1 Attachment C CMAQ:FED STATE LETTING CSJ#O918�6-273 District #DAU18 Code Chart 64#114OO Project: US 77 at Nicosia St. Federal Highway Administration CFD/\No.:2O.205 Not Research and Development T[3ffiC'Tr@fic TEA14 Page 1 Of 1 Attachment CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development ATTACHMENT E VARIATIONS TO SCOPE OF WORK Traff ic-Traff ic—TEA 14 Page 1 of 1 Attachment E CMAQ:FED STATE LETTING CSJ # 0918-46-273 District #DAL/1 8 Code Chart 64 # 11400 Project: US 77 at Nicosia St. Federal Highway Administration CFDA No.: 20.205 Not Research and Development The following table is an estimate of cost participation in the Project. This is only an estimate and final participation amounts will be based on actual costs. Traff ic-Traff ic—TEA1 4 Page 1 of 1 Attachment F CMAQ:FED STATE LETTING Traffic Signal Controller Cabinet •1 rr-Traffic Signal UPS/BBU Traffic Signal Controller Cabinet Base Managed Ethernet Switch Wavetronix Advance Radar Detectors Ir 10 1 Wavetronix Radar Detection Cable I IrEthernet Radio with Antenna -J Ir I I Ethernet Radio Cable lox a 11111118M Traff ic-Traff ic—TEA1 4 Page 1 of 1 Attachment F CMAQ:FED STATE LETTING S1Legal\Our Documents\Ordinances\] 7\TXD0T-ST11 MMA final.doex ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AND DELIVER A "NATIONAL HIGHWAY SYSTEM (NHS) PROGRAM PROJECT AGREEMENT FOR STATE -CONTRACTED TRAFFIC SIGNAL CONSTRUCTION, WITH A MUNICIPALITY PROVIDING LIMITED MATERIALS OR LABOR" BETWEEN THE CITY OF DENTON AND THE TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT), REGARDING THE CITY'S REQUEST FOR REIMBURSEMENT OF THE FEDERAL ALLOWABLE PERCENTAGE OF THE COST OF INSTALLING A TRAFFIC SIGNAL, AND OTHER ITEMS DIRECTLY RELATED TO THE OPERATION OF THE INTERSECTION OF US 77 AND NICOSIA STREET, WITHIN THE CITY THAT ARE SPECIFIED IN SAID AGREEMENT; PROVIDING THE CITY MANAGER WITH AUTHORITY TO CARRY OUT THE RIGHTS, AND DUTIES OF THE CITY REGARDING SAID AGREEMENT; PROVIDING THE CITY MANAGER WITH AUTHORITY TO EXPEND FUNDS THEREFOR; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 ("ISTEA"), codified under Title 23, U.S.C. Section 101, et seq., authorizes funding for Metropolitan Planning at 23 U.S.C. Sec. 104(f), which has been reauthorized under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA-LU"); and WHEREAS, 23 U.S.C. Section 104, creates a surface transportation program ("STP"); and WHEREAS, 23 U.S.C. Section. 134, establishes that Metropolitan Planning Organizations ("MPOs"), and the State's Transportation Agencies develop transportation plans and programs for urbanized areas of the State; and WHEREAS, 23 U.S.C. Section. 120, establishes the Federal share of funding for STP programs involving the procurement, and installation of traffic signals, as defined elsewhere in this agreement; and WHEREAS, the State is empowered under existing laws to operate and maintain a system of highways and roadways for public use and benefit; and WHEREAS, the City has requested the State of Texas to reimburse to it the Federal allowable percentage of the cost of installing traffic signals, and other items directly related to the operation of an intersection at the intersections established in this agreement (hereafter the "Project"); and WHEREAS, the Project has been designated as a federal -aid project and accordingly, this agreement shall be made in accordance with Federal Highway Administration ("FHWA") procedures and regulations; and WHEREAS, the City has offered to participate in the development and construction of the Project, as defined elsewhere in the agreement; and S:ALegal\Our Documents\Ordinances\17\TXDOT-ST13 MMA final.docx WHEREAS, it is in the best interest of the City and the State to assist the State by furnishing and installing traffic signal equipment on the Project; and WHEREAS, the State will secure the Federal cost share, and reimburse the City for their appropriate costs associated with the Project as defined elsewhere in this agreement; and WHEREAS, the Texas Transportation Commission passed Minute Order No. 113074 authorizing the Project through the State Transportation Improvement Program; and WHEREAS, the State of Texas is authorized to enter into an agreement with the City for the Project pursuant to Texas Transportation Code, Sec. 221.002; and WHEREAS, the City Council has reviewed the National Highway System Program Project Agreement for State -Contracted Traffic Signal Construction with a Municipality Providing Limited Materials or Labor, (hereafter the "Agreement") to be entered into by the State of Texas and the North Central Texas Council of Governments ("NCTCOG"), a Metropolitan Planning Organization, chartered under the laws of the State of Texas; however, acting through the City of Denton, Texas; and the Council notes that Federal Funds in the amount of $38,240 are available for reimbursement to the City, from the Federal government through the State of Texas; and accordingly it finds that this Agreement is in the best interests of the citizens of the City and should be approved; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as if fully set forth herein. SECTION 2. The National Highway System Program Project Agreement for State - Contracted Traffic Signal Construction with a Municipality Providing Limited Materials or Labor attached hereto as Exhibit "A," and incorporated by reference herein, is hereby approved; and the City Manager or his designee, is hereby authorized to execute and deliver said Agreement on behalf of the City of Denton, Texas. SECTION 3. The City Manager is hereby authorized to expend funds and to carry out the rights and duties of the City under the Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR S:ALegal\Our Documents\Ordinances\1 7V'1'XDOT-S7'11 MMA final.doex ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY B Y: �' `C City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-681, Version: 1 AGENDA CAPTION Consider adoption of an ordinance releasing, abandoning and vacating a 0.1195 acre portion of a 0.232 acre sanitary sewer easement recorded in Volume 1729, Page 177, Real Property Records, Denton County, Texas, and located in the B.B.B. & C.R.R. Survey, Abstract No. 192; and declaring an effective date. [Abandonment of a portion of a sanitary sewer easement to remove the encumbrance from the property and update the City real estate records] Public Utility Board approved 7-0 City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton City Hall 215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects ACM: Mario Canizares DATE: June 6, 2017 SUBJECT Consider adoption of an ordinance releasing, abandoning and vacating a 0.1195 acre portion of a 0.232 acre sanitary sewer easement recorded in Volume 1729, Page 177, Real Property Records, Denton County, Texas, and located in the B.B.B. & C.R.R. Survey, Abstract No. 192; and declaring an effective date. [Abandonment of a portion of a sanitary sewer easement to remove the encumbrance from the property and update the City real estate records] Public Utility Board approved 7-0 BACKGROUND As a housekeeping measure, staff is formally requesting a portion of an existing sanitary sewer be abandoned located on Lot 1 Block 1, QT 912 Addition. Staff noticed that the sanitary sewer easement that contained a 10 inch sanitary sewer line was never abandoned. The sanitary sewer line that was housed within said easement was removed and rerouted in 2011. Said sanitary sewer easement is 0.232 acres and is recorded in Volume 1729 Page 177, Real Property Records, Denton County, Texas. The public utilities for the site were accepted and approved in 2011. The building for the site was erected thereafter and has been open ever since. This abandonment request is to remove the encumbrance from the property and update the City real estate records. The subject abandonment request was reviewed by The Development Review Committee, and staff recommends the approval. Staff performs an analysis on the request for abandonments as follows F1 Is the easement tract requested for abandonment considered "excess easement"? F1 Does the easement tract requested for abandonment have a continued public use? F1 Is it the best interests of the general public to abandon the government's rights in the subject abandonment tract? F1 Would the granting of this request establish a precedent for future abandonment requests? Staff findings on this analysis are as follows: 1. The requested sanitary sewer easement abandonment tract fits 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 sanitary sewer easement abandonment tract is not slated for utilization for any future sanitary sewer facilities. 3. The sanitary sewer easement abandonment is in the public's best interests, because the area for the subject abandonment is no longer needed by the general public and the area encumbered is freed up for other uses. 4. This abandonment will not set a precedent, because the above three standards have been met. OPTIONS 1. Recommend approval of the Ordinance. 2. Do not recommend approval the Ordinance. 3. Table for future consideration. RECOMMENDATION The Development Review Committee recommends approval of this request. ESTIMATED SCHEDULE OF PROJECT The abandonment will be completed upon approval of City Council. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee recommended approval on April 7, 2017. Public Utility Board approved 7-0 on May 22, 2017 FISCAL INFORMATION Not applicable. BID INFORMATION Not applicable. 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 EXHIBITS 1. Agenda Information Sheet 2. Location Map 3. Site Map 4. Ordinance Respectfully submitted: Paul Williamson Real Estate Manager Prepared by: Mark A. Laird Real Estate Analyst SITE J11M CHRISTXi LOCATION MAP 1 ---------- - --- ------- L -aa, z 0 '75 0� 0� 0� ,0� ----------- -- -------------- ------------- -- Z-- � I 17A"ZI, LOCATION MAP L 111 11 .'',I f(/ I, � J �CV'. � 1 .. / _j__ --- --------------- C H, A P 13 --- DOWNTOWN DENTON --- -------- A G il --------- ---- --- ---- ------ ------ ----- ------ J/ ----------- -- N t-9 Lr4lg LADSEY 0 N QT -912 Addition W E Sanitary Sewer Easement IT Abandonment Request C OF Y S DENTON ............... 2,200 1,100 0 2,200 4,400 6,600 ExNbt 2 SII Feet 1 ---------- - --- ------- L -aa, 0� 0� 0� ,0� L 111 11 .'',I f(/ I, � J �CV'. � 1 .. / _j__ --- --------------- C H, A P 13 --- DOWNTOWN DENTON --- -------- A G il --------- ---- --- ---- ------ ------ ----- ------ J/ ----------- -- N t-9 Lr4lg LADSEY 0 N QT -912 Addition W E Sanitary Sewer Easement IT Abandonment Request C OF Y S DENTON ............... 2,200 1,100 0 2,200 4,400 6,600 ExNbt 2 SII Feet SVX9i'NOiN3(l 9C-1 'R 3AW(l Ai]S213AINn Z WO :'ON ajoIS dijj_�!nC) gjS 05 00 CL. 0— �g! tt § �qgHf- P HN 14H i v 26, N � v is-4 23 i os .9� 1 N g I s-, H iu F, A,- U zz A -.0 g! Q w I X t4 'A K" v 53- V % vA j oo(, Vy V� v —ooCt Mi V1, v A 6 A f,l d: %l w -X ............... v lz 1 Ego R: t �zxIX 31V f /x A J 1 -1 Mi t2 JL 12 I X- p s en- HERZ-, IN t u "V L Q Exhibit 4 to AIS SALega1\0ur D0cuments\0rdinances\17\QT 912 Sanitary Sewer Easement Abandonment Ordinance -Tl, rev.doex ORDINANCE NO. AN ORDINANCE ABANDONING, RELEASING, AND VACATING A 0.1195 ACRE PORTION OF A 0.232 ACRE SANITARY SEWER EASEMENT RECORDED IN VOLUME 1729, PAGE 177, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, AND LOCATED IN THE B.B.B. & C.R.R. SURVEY, ABSTRACT NO. 192; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton ("City") is the holder of the Sanitary Sewer Easement as recorded in Volume 1729, Page 177, Real Property Records, Denton County, Texas; and WHEREAS, Quicktrip Corporation, ("Owner") has represented to the City it is the owner of the property subject to the Sanitary Sewer Easement; and WHEREAS, the Owner has requested the abandonment of a portion of the Sanitary Sewer Easement as described and depicted on the attached "Exhibit A"; and WHEREAS, the City reviewed the request of the Owner and determined that the portion of the Sanitary Sewer Easement described and depicted in Exhibit A is no longer needed, and recommends that the Sanitary Sewer Easement be abandoned, released, and vacated only to the extent described in Exhibit A, with the remainder retained by the City; and WHEREAS, the City Council of the City of Denton, Texas, finds it is in the public interest to abandon, release, and vacate a portion of the Sanitary Sewer Easement; 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 Sanitary Sewer Easement held by the City of Denton, Texas, is hereby abandoned, released, and vacated only to the extent described and depicted on the attached "Exhibit A". SECTION 3. 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 portion of the Sanitary Sewer Easement which was abandoned, released, and vacated in Section 2 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 Sanitary Sewer Easement may cover, encumber, include, cross or overlap. SECTION 4. The City Manager, or his designee, is authorized to execute a release document evidencing this partial abandonment of the Sanitary Sewer Easement, suitable for recordation in the Real Property Records, Denton County, Texas. 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. Exhibit 4 to AIS SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY Page 2 Exhibit 4 to AIS EXHIBIT "A" I Ig aIS , 0 • BEING a tract of land in the City of Denton, Denton County, Texas out of the B.B.B. & C. R.R. Company Survey, Abstract No. 192, and being a part of a 2.3265 acre tract of land conveyed to Quiktrip Corporation according to the deed filed for record in County Clerk's File No. 2010-64057, Deed Records, Denton County, Texas being more particularly described by metes and bounds as follows: COMMENCING at a 5/8" iron rod set with plastic cap stamped "R.P.L.S. 5199" in the south right of way line of U.S. Highway 380 (variable -width right of way), the east right of way line of Kansas City Southern Railway (150' right of way), the northwest corner of said 2.3265 acre tract, from which a 3 1/2" aluminum TxDot monument bears South 64 degrees, 59 minutes, 52 seconds West, a distance of 0.48 feet; THENCE, along the east line of said Railway right-of-way and the west line of said 2.3265 acre tract, South 22 degrees 01 minutes 20 seconds East, a distance of 255.01 feet to a point in the north line of an existing 16 foot wide Sanitary Sewer Easement as recorded in Volume 1729, Page 177, Deed Records, Denton County, Texas, from which a 5/8" iron rod set with plastic cap stamped "R.P.L.S. 5199" bears South 22 degrees 01 minutes 20 seconds East, 60.10 feet; THENCE, along the north line of said existing Sanitary Sewer Easement, North 48 degrees 58 minutes 04 seconds, a distance of 21.15 feet to the POINT OF BEGINNING; THENCE, continuing along the north line of said Easement as follows: North 48 degrees 58 minutes 04 seconds East, a distance of 292.98 feet; North 28 degrees 13 minutes 36 seconds East, a distance of 25.34 feet to a point in the east line of said 2.3265 acre tract, being in the west right-of-way line of Interstate Highway 35 (variable width R.O.W.); THENCE, along the east line of said 2.3265 acre tract and the west right-of-way line of Interstate Highway 35, South 71 degrees 41 minutes 15 seconds East, a distance of 16.24 feet to a point, being in the south line of said existing Sanitary Sewer Easement; THENCE, along the south line of said existing Easement as follows: South 28 degrees 13 minutes 36 seconds West, a distance of 31.07 feet; South 48 degrees 58 minutes 04 seconds West, a distance of 301.42 feet; THENCE, North 22 degrees 01 minutes 20 seconds West, a distance of 16.92 feet to the POINT OF BEGINNING and containing 5,207 square feet or 0.1195 acres of land more or less. F O., TF S T £ Douglas S. Loomis DOUGLAS....LOOMIS.. Registered Professional Land Surveyor No. 5199 i.: �, 5199 p,r� SU12 EASEMENT EXHIBIT 811 E. Plano Parkway PART OF 2.3265 ACRES Suite 117 C.C.F. No. 2007.143671, D.R.D.C.T.) Plano, Texas 75074 B.B.B. & C.R.R. SURVEY, ABSTRACT NO. 192 (972) 424-7002 voice CITY OF DENTON, DENTON COUNTY TEXAS(972) 633-1702 Fax Date: 10/11/2010 Scale: N/A Project No. 0814954 � �� �° , � b?. WWW.SurveyCon.ultantslnc.Com C�; �� � I•I f'� Exhibit 4 to AIS U.S. HIGHWAY 380 (VARIABLE -WIDTH R.O.W.) (C.C.F. NO. 2008.10633, D.R.D.C.T.) P.O.C. 5/8" I.R.S. (3-1/2' TXDOT \�' MONUMENT BEARS ,S 64'59'52" W, 0.48')(C.M.) r NUMBER LEGEND 5/8" I.R.S. 5/8" IRON ROD SET WITH PLASTIC L1 CAP STAMPED "R.P.L.S. 5199" (CM) CONTROLLING MONUMENT D.R.D.C.T. DEED RECORDS, DENTON COUNTY, TEXAS I.R.F. IRON ROD FOUND P.R.D.C.T. PLAT RECORDS, DENTON, COUNTY, TEXAS NTS NOT TO SCALE PG. PAGE P.O.B. POINT OF BEGINNING P.O.C. POINT OF COMMENCING R.O.W. RIGHT-OF-WAY VOL. VOLUME U.S. HIGHWAY 380 (VARIABLE -WIDTH R.O.W.) (C.C.F. NO. 2008.10633, D.R.D.C.T.) P.O.C. 5/8" I.R.S. (3-1/2' TXDOT \�' MONUMENT BEARS ,S 64'59'52" W, 0.48')(C.M.) r NUMBER DIRECTION DISTANCE L1 N 48°58'04" E 21.15' L2 N 28°13'36" E 25.34' L3 S 71°41'15" E 16.24' L4 S 28°13'36" W 31.07' L5 N 22°01'20" W 16.92' L6 S 22°01'20" E 60.10' 0 50' 100' 1!%66pN SCALE. 1"=100' BASIS OF BEARINGS WEST LINE OF 8.2426 ACRE TRACT S 22°01'20" E (C.C.F. No. 2007-143671. D.R.D.C.T. PORTION OF SANITARY MONF SEWER EASEMENT C3 (C.M.) VOL. 1729, PG. 177, D.R.D.C.T. %/ y TO BE ABANDONED 5,207 SQUARE FEET 0.1195 ACRES / S 71'41'15" E �/ 18.53' o°i %�ptX (PROPOSED LOT 1) 2.3265 ACRES QUIKTRIP CORPORATION (C.C.F. NO. 2010-64057, D.R.D.C.T.) / P.O.B. -_ \,---PORTION OF SANITARY SEWER EASEMENT \ VOL. 1729, PG. 177, D.R.D.C.T. \ TO REMAIN i \\ \ (PROPOSED LOT 2) REMAINDER OF 8.2426 ACRES (CALLED) TEXAS BLUE SADDLE, LTD. (C.C.F. NO. 2007-143671, D.R.D.C.T.) EASEMENT EXHIBIT 811 E. Piano Parkway PART OF 2.3265 ACRES Suite 117 C.C.F. No. 2007.143671, D.R.D.C.T.) Plano, Texas 75074 B.B.B. & C.R.R. SURVEY, ABSTRACT NO. 192 (972) 424-7002 Voice CITY OF DENTON, DENTON COUNTY TEXAS (97z) 633-1702 Fax Dote: 10/11/2010 Scale: 1"=100' Project No. 0814954 �� �° 11 3° tt WWW.SurvcyConsultantsInc.Cont City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-682, Version: 1 AGENDA CAPTION Consider adoption of an ordinance authorizing the abandonment and release of certain blanket electric utility easements owned by the City, to the extent that they encumber certain real property owned by Micah Deweerd Holdings, LLC, a Texas limited liability company, containing approximately 1.61 acres, as described in that Deed recorded as Instrument Number 2016-140641, Real Property Records, Denton County, Texas; being located in the W. Garrison Survey, Abstract No. 1545, City of Corinth, Texas, and providing an effective date. [Partial abandonment of blanket electric utility easements as they encumber Micah Deweerd Holdings property aka Pecan Creek Addition Lot 2 located within the City of Corinth] Public Utility Board approved 7-0. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton City Hall 41"I&IMMM 215 E. McKinney Street DTA NTi'ON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects ACM: Mario Canizares DATE: June 6, 2017 SUBJECT Consider adoption of an ordinance authorizing the abandonment and release of certain blanket electric utility easements owned by the City, to the extent that they encumber certain real property owned by Micah Deweerd Holdings, LLC, a Texas limited liability company, containing approximately 1.61 acres, as described in that Deed recorded as Instrument Number 2016-140641, Real Property Records, Denton County, Texas; being located in the W. Garrison Survey, Abstract No. 1545, City of Corinth, Texas, and providing an effective date. [Partial abandonment of blanket electric utility easements as they encumber Micah Deweerd Holdings property aka Pecan Creek Addition Lot 2 located within the City of Corinth] Public Utility Board approved 7-0. BACKGROUND Micah Deweerd Holdings, LLC, a Texas limited liability company, has made a formal request for the City of Denton to abandon certain blanket electric utility easements as they encumber the property of Lot 2 (South part) Block A, Pecan Creek Addition. In 1946 and 1952, Brazos River Transmission Electric Cooperative was granted blanket electric utility easements, subsequently assigned to the City of Denton in 1987 by the Assignment of Easements recorded in Volume 2736, Page 825, Real Property Records, Denton County, Texas. The blanket electric utility easements are being requested for abandonment, as they affect the subject property, are as follows; 1.) Electric Utility Easement as recorded in Volume 332 Page 499, Deed Records, Denton County, 2.) Electric Utility Easement as recorded in Volume 381, Page 490, Deed Records, Denton County, Texas, 3.) Electric Utility Easement as recorded in Volume 384, Page 118, Deed Records, Denton County. At the time the subject easements were granted, it was common practice to allow electric facilities to traverse a particular overall property, by means of a blanket easement, to forgo the expense of boundary survey work and the preparation of specific legal descriptions detailing the location of the electric facilities. Blanket easements also gave field installation crews some latitude to adjust alignments in the field as terrain and conditions warranted, on a tract by tract basis. A consequence of blanket easements is that, upon strict interpretation, the easement holder does have the right to place electric facilities at any location upon a property tract subject to that easement. The subject abandonments are not essential to Denton Municipal Electric for any future projects and have no facilities located on the subject property. Abandonment of the subject easements would remove the blanket easement encumbrances from the subject property allowing it to be platted and developed within the City of Corinth. The subject abandonment request was reviewed by The Development Review Committee, and staff recommends the approval Staff performs an analysis on the request for abandonments as follows: F1 Are the electric utility easement tracts requested for abandonment considered "excess electric utility easements?" F1 Does the electric utility easement tracts that are requested for abandonment have a continued public use? F1 Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tracts? F1 Would the granting of this request establish a precedent for electric utility easement abandonments for future requests? Staff findings on this analysis are as follows: 1. The requested electric utility easement abandonment tracts fit the criteria of "excess electric utility easement." Typically, excess electric utility easement is defined as: Property acquired or used by the City for electric facilities 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). In this situation with the property owner is resolving an encumbrance that has affected its property since 1942 and1952. 2. The electric utility easement abandonments have not been utilized and have no future electric use or placement of franchise utilities. 3. The electric utility easement abandonments are in the public interest, because the area for the subject abandonment are not needed by the general public or franchise utilities. 4. This abandonment will not set precedent, because the above three standards have been met. OPTIONS 1. Recommend approval of the Ordinance. 2. Do not recommend approval the Ordinance. 3. Table for future consideration. RECOMMENDATION The Development Review Committee recommends approval of this request. ESTIMATED SCHEDULE OF PROJECT The abandonment will be completed upon approval of City Council. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee recommended approval on April 7, 2017. Public Utility Board approved 7-0 on May 22, 2017 FISCAL INFORMATION Not applicable. BID INFORMATION Not applicable. 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 EXHIBITS 1. Agenda Information Sheet 2. Location Map 3. Site Map 4. Boundary Survey, Lot 2 (South part) Block A, Pecan Creek Addition 5. Applicant project narrative letter 6. Ordinance Respectfully submitted: Paul Williamson Real Estate Manager Prepared by: Mark A. Laird Real Estate Analyst LOCATION MAP HOBSON E C IBJ� ETJ z p V "'J AA 8/1/2 'LS 11 1,110" %'d1'1`1(]=- 1 1 8 Lj ill 08/ 20 . ........ ------ ... ............. ----------------- . . . . ......... ,7 DOWNTOWN DENTON S"'1111/101v LL .......... UIVA I Gam=h SPENCER XMV/ HOBSON E C IBJ� ETJ z p V "'J AA 8/1/2 'LS r -H FM j 115/13 - SITE 1� S i D ram FLT N Pecan Creek Addition Lot 2 (S Pt.) Blk. A Electric Utility Blanket Easements IT S Abandonment Request C OF Y DENTON ............... 3,100 1,550 0 3,100 6,200 9,300 Ex �h �i b li t 2 to c3 Feet p ill 08/ 20 El r -H FM j 115/13 - SITE 1� S i D ram FLT N Pecan Creek Addition Lot 2 (S Pt.) Blk. A Electric Utility Blanket Easements IT S Abandonment Request C OF Y DENTON ............... 3,100 1,550 0 3,100 6,200 9,300 Ex �h �i b li t 2 to c3 Feet CITY OF DENTON SITE MAP CITY OF CORINTH SITE N Pecan Creek Addition Lot 2 (S Pt.) Blk. A Electric Utility Blanket Easements S Abandonment Request ............... 280 140 0 280 560 840 ExNbt 3,to SII Feet CITY OF DENTON f m aoiLY ....vww 2v v vaD a, c - v « v a - _ vm 0 _ E E E E E E p E m E v a O i n o a� .. r m m = r z= o r z r s r ,� e r r .- r .- r .- r r- r ., r � O'vV�i�• N '.� � r+ ^ H /1 E 74.15 08°37U •� 3A f,j fA 4Z j. f I.V.F �''' 111111 II� Illlh iiiii Illlliiiii ° �� �� ° 111111 O =_i rn O O J >¢UW_ ws=waw N FAY xc) i (� N i33 1.13 fY.. Y 7 ✓7.r gFsP /,.� f,j fA 4Z j. f I.V.F �''' 111111 II� Illlh iiiii Illlliiiii ° �� �� ° 111111 O =_i rn O O J >¢UW_ ws=waw ExNbt 5 o 'j Project Narrative — Pecan Creek Addition Lots 2R1 & 2R2 — City of Corinth 1. The proposed abandonments are for the proposed commercial development of an existing vacant tract of land in the city of Corinth. 2. The subject easement abandonment does not affect any existing public utilities, facilities, or franchise utilities. 3. The future development plans are for the immediate development of a restaurant on the site. 4. Per the city of Corinth, there are no alternatives other than the abandonment of the subject easement areas. 5. Anticipated start date of the proposed construction is April of 2017. 6. There is currently a replat pending with the city of Corinth. 7. The subject land rights abandonment will positively affect the public's interest as it will allow the development of a fine dining restaurant. Exhibit 6 to AIS S:ALegahOur Documents\Ordinances\17\Pecan Creek Addition Abandonment Ordinance - T1, rev. docx ORDINANCE NO. AN ORDINANCE AUTHORIZING THE ABANDONMENT AND RELEASE OF CERTAIN BLANKET ELECTRIC UTILITY EASEMENTS OWNED BY THE CITY, TO THE EXTENT THAT THEY ENCUMBER CERTAIN REAL PROPERTY OWNED BY MICAH DEWEERD HOLDINGS, LLC, A TEXAS LIMITED LIABILITY COMPANY, CONTAINING APPROXIMATELY 1.61 ACRES, AS DESCRIBED IN THAT DEED RECORDED AS INSTRUMENT NUMBER 2016-140641, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; BEING LOCATED IN THE W. GARRISON SURVEY, ABSTRACT NO. 1545, CITY OF CORINTH, TEXAS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Micah Deweerd Holdings, LLC, a Texas limited liability company (the "Owner") is the owner of certain real property located in the City of Corinth, Denton County, Texas and containing approximately 1.61 acres of land, as described in that Certain Deed filed as instrument number 2016-140641 in the Real Property Records, Denton County, Texas, being located in the W. Garrison Survey, Abstract No. 1545, City of Corinth, Texas, as more particularly described in Exhibit "A" attached hereto by reference (the "Property"); and WHEREAS, the Property is encumbered by certain electric easements: (i) That certain easement from W.D. Pockrus and wife, Nora Pockrus to Brazos River Transmission Electric Cooperative, Inc. dated October 2, 1952, recorded in volume 384, page 118 of the Real Property Records of Denton County, Texas, (ii) that certain easement from D.R. Brady and wife, Mabel Brady to Brazos River Transmission Electric Cooperative, Inc., dated June 18, 1952, recorded in Volume 381, page 490 of the Real Property Records of Denton County, Texas, and (iii) that certain easement from John Gassaway and wife, Ida F. Gassaway to Brazos River Transmission Electric Cooperative, Inc., dated June 1, 1946, recorded in Volume 332, page 499 of the Real Property Records of Denton County, Texas (all easements collectively referred to herein as the "Easements"). WHEREAS, the Easements were assigned to the City of Denton, Texas ("City") pursuant to that certain Assignment of Easements dated October 23, 1987, recorded in Volume 2736, page 825 of the Real Property Records of the Denton County, Texas; and WHEREAS, the Owner has requested the City release, abandon and vacate the Easements to the extent that they affect and encumber his property only; and WHEREAS, the City reviewed the request and determined that the Easements are no longer needed along or within the Property, and recommended the Easements be released, abandoned and vacated as to the Property only; 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 Easements held by the City of Denton, Texas, are released, abandoned, and vacated only to the extent they affect the Property: Exhibit 6 to AIS A. Brazos River Transmission Electric Cooperative, Inc. dated October 2, 1952, recorded in volume 384, page 118 of the Real Property Records of Denton County, Texas. B. Brazos River Transmission Electric Cooperative, Inc., dated June 18, 1952, recorded in Volume 381, page 490 of the Real Property Records of Denton County, Texas. C. Brazos River Transmission Electric Cooperative, Inc., dated June 1, 1946, recorded in Volume 332, page 499 of the Real Property Records of Denton County, Texas. The City specifically retains and reasserts its ownership interest in the remaining of the properties affected and encumbered by the Easements and the Assignment of Easements, recorded in Volume 2736, Page 825, of the Real Property Records of Denton County, Texas. SECTION 3. 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 on the Property, other than the Easements which were released, abandoned, vacated in Section 2 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 Easements may cover, encumber, include, cross or overlap. SECTION 4. 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 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY41 Page 2 Exhibit 6 to AIS Escrow Pile No.: 165927 EXHIBIT "A" All that certain lot, tract or parcel of land situated in the City of Corinth, Denton County, Texas and being part of Lot 2, Block A of Pecan Creek Addition, an addition to said City, according to the re -plat thereof, recorded in Document Number 2010-134, Plat Records, Denton County, Texas and being tract being more particularly described as follows: Beginning at an "X" cut set in the Northwest line of Post Oak Drive and the center of a 50` Public Access Easement and Drainage and Utility Easement per said Plat for the South corner of said Lot 2; Thence the following three calls with said Easement and the West line of said Lot 2; North 41 degrees 28 minutes 23 seconds West, 44.42 feet to an "X" cut set a the beginning of a curve to the right having a radius of 150.00 feet, and whose long chord bears North 36 degrees 20 minutes 14 seconds West, 26.94 feet; Thence along said curve an arc length of 26.98 feet to an "X" cut set; Not tit 31 degrees 11 minutes 07 seconds West, 103.66 feet to an "X" set; Thence North 36 degrees 00 minutes 17 seconds East, 362.90 feet to a capped iron rod found in the new Southwest right-of-way of Interstate Highway 35E for the North corner of the herein described tract; Thence along said Southwest line and along a curve to the left whose long chord bears South 52 degrees 48 minutes 24 seconds East, 52.39 feet and whose radius is 1178.30 feet, and an are length of 52.40 feet to a capped iron rod found; Thence South 53 degrees 37 minutes 40 seconds East, 63.09 feet to a 1/2" iron rod found; Thence South 47 degrees 01 minutes 54 seconds East, 11.53 feet to a TXDOT monument found; Thence South 08 degrees 37 minutes 01 seconds East, 74.14 feet to a TXDOT monument found; Thence South 36 degrees 00 minutes 17 seconds West, 109.01 feet to a TXDOT monument found; Thence South 54 degrees 07 minutes 11 seconds East, 8.45 feet to a TXDOT monument found; Thence South 36 degrees 21 minutes 57 seconds West with the North line thereof and South line of said Lot 2, 50.61 feet to a capped iron rod found at the beginning of a curve to the right, having a radius of 953.31 feet, and whose long chord bears South 42 degrees 16 minutes 37 seconds West, 206.70 feet; Thence along said curve an arc length of 207.11 feet to the Place of Beginning and containing 1.61 acres of land more or less. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-683, Version: 1 AGENDA CAPTION Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to sign and submit to the Department of Housing and Urban Development the 2017 Action Plan for Housing and Community Development with appropriate certifications, as authorized and required by the Housing and Community Development Act of 1974, as amended, and the National Affordable Housing Act of 1990, as amended; and providing for an effective date. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI DEPARTMENT: CM: DATE: Exhibit I City of Denton AGENDA INFORMATION SHEET City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Department of Development Services/Community Development Todd Hileman June 6, 2017 SUBJECT Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to sign and submit to the Department of Housing and Urban Development a 2017 Action Plan for Housing and Community Development with appropriate certifications, as authorized and required by the Housing and Community Development Act of 1974, as amended, and the National Affordable Housing Act of 1990, as amended; and providing for an effective date. BACKGROUND On an annual basis, the City of Denton prepares an Action Plan for submission to the US Department of Housing and Urban Development (HUD). The Action Plan serves as the City's application for Community Development Block Grant (CDBG) and Home Investment Partnerships (HOME) program funding. The 2017 Action Plan represents the third year in the City's five-year Consolidated Plan which states the priorities for use of Federal CDBG and HOME funding. A public hearing requesting citizen input regarding the use of these funds through both discussion and surveys, was held in November 2016. A citizen survey was also available on the City's website. Application availability was advertised in December. Application training was provided by Community Development staff. The Community Development Advisory Committee (CDAC) and the Human Services Advisory Committee (HSAC) reviewed applications and held funding hearings in February and March. Each committee developed a set of funding recommendations. Staff has developed the 2017 Action Plan based on these recommendations. Administration activities are also included in the Action Plan. A public hearing on the proposed 2017 Action Plan was held on May 23, 2017. No comments were made at the hearing. Residents were also invited to submit comments to the Community Development Division over a 30 -day period, however, no comments were received. OPTIONS • Approval of the 2017 Action Plan for Housing and Community Development as presented; • Approval of the 2017 Action Plan for Housing and Community Development as amended by City Council; 0 No approval of the 2017 Action Plan for Housing and Community Development. RECOMMENDATION Staff recommends approval of the 2017 Action Plan stating the recommendations of the Community Development Advisory Committee and the Human Services Advisory Committee. ESTIMATED SCHEDULE OF PROJECT Action Plan approval June 6, 2017 Submission of Action Plan to HUD June 15, 2017 HUD release of funds & program/project initiation August 1, 2017* *Due to delayed Congressional budgetary action, the release of funds may be later than August 1st PRIOR ACTION/REVIEW (Council, Boards, Commissions) The CDAC reviewed requests for housing programs, non-profit facilities and infrastructure projects. CDAC recommended $995,582 in funding for various projects and programs and approved recommendations for reallocation of $35,740 in 2016 CDBG funding to ensure that all funds are expended in a timely manner and meet program requirements. The HSAC reviewed requests for social services program funding. HSAC developed recommendations for use of both CDBG funds and City general fund dollars. The list of general fund recommendations is included in the 2017 Action Plan. However, the approval of the Plan does not include approval of the general fund allocations. These recommendations will be considered during the normal budgeting cycle. HSAC recommended allocation of $131,945 in CDBG funding to various social service programs. Committee chairs Larry Varnes (CDAC) and Sheryl English (HSAC) presented these recommendations to City Council at the work session on May 23, 2017. FISCAL INFORMATION All projects and programs approved under the 2017 Action Plan are funded through the CDBG and/or HOME programs. The CDBG and HOME Budget Information chart shows the funding from previous years and the amount of uncommitted funds. General fund dollars currently used for salary expenses are included in the program administration budget. BID 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, Liveable & Family -Friendly Community Related Goal: 4.3 Provide quality, diverse, and accessible neighborhood services for the community FXHTRTTC 1. Resolution 2. 2017 Action Plan for Housing and Community Development 3. CDBG and HOME Budget Information Chart Respectfully submitted: Munal Mauladad Director of Development Services Prepared by: Barbara Ross Community Development Manager RESOLUTION NO. A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SIGN AND SUBMIT TO THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT A 2017 ACTION PLAN FOR HOUSING AND COMMUNITY DEVELOPMENT WITH APPROPRIATE CERTIFICATIONS, AS AUTHORIZED AND REQUIRED BY THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED AND THE NATIONAL AFFORDABLE HOUSING ACT OF 1990, AS AMENDED; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, is concerned with the development of viable urban communities, including decent housing, a suitable living environment and expanded economic opportunities; and WHEREAS, the City of Denton, Texas, has a special concern for persons of low and moderate income; and WHEREAS, the City of Denton, Texas, as a CDBG Entitlement City and a HOME Participating Jurisdiction, has prepared, through a citizen participation process, a program for utilizing its 2017 -year entitlement funds, program income and reallocated funding from previous years in the approximate amount of $1,347,462; and WHEREAS, citizen participation requirements, including the holding of public hearings, have been met; and WHEREAS, the Community Development Act of 1974 and the National Affordable Housing Act of 1990 require an application and appropriate certifications included in the Consolidated Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council of the City of Denton, Texas, authorizes the City Manager to sign and submit to the Department of Housing and Urban Development a 2017 Action Plan, and appropriate certifications for entitlement funds under the Housing and Community Development Act of 1974, as amended and the National Affordable Housing Act of 1990, as amended. SECTION 2. The City Council of the City of Denton, Texas, authorizes the Community Development Manager to handle all fiscal and administrative matters related to the application, the Action Plan and the certifications, including any proportional increases or decreases in project or program funding required to match actual allocation amounts. SECTION 3. The City Secretary is hereby authorized to furnish copies of this resolution to all interested parties. SECTION 4. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY: 4 2 CHRIS WATTS, MAYOR City of Denton Community Development Division I 40FYTZIMri " ENTON 2017/18 Action Plan 3rd year of the 2015/19 Consolidated Plan (August 1, 2017 through July 31, 2018) ... for housing and community development 1 OMB Control No: 2506-0117 (exp. 07/31/2015) 11 l 2017/18 ACTION PLAN PREPARED BY: City of Denton Community Development Division 601 E. Hickory, Suite B Denton, Texas 76205 Main Phone Number: (940) 349-7726 Email: community.development@cityofdenton.com Website: www.citvofdenton.com CITY COUNCIL APPROVAL: ➢ Presented on May 23, 2017 ➢ Considered for Approval on June 6, 2017 HUD APPROVAL ➢ To be Submitted on June 15, 2017 ➢ Approval on TBD 2 OMB Control No: 2506-0117 (exp. 07/31/2015) Executive Summary AP -05 Executive Summary - 24 CFR 91.200(c), 91.220(b) 1. Introduction This document serves as the City of Denton's 2017 Action Plan for the Community Development Block Grant (CDBG) and HOME Investment Partnership (HOME) Programs. In accordance with 24 CFR Part 91.220 of Title I of the Housing and Community Development Act of 1974, as amended, the City of Denton is required to submit a One -Year Action Plan to the U.S. Department of Housing and Urban Development. The plan outlines the specific projects and services that will be funded during the 2017 program year to address Denton's strategies stated in the 2015-2019 Consolidated Plan for Housing and Community Development. The City of Denton is currently an entitlement city for the Community Development Block Grant (CDBG) and a participating jurisdiction for the HOME Investment Partnership (HOME) Programs. SF -424 applications for CDBG and HOME are available as in the appendix section. The City of Denton's estimated total federal and program income funding for 2017 is $1,347,462 (includes $35,740 of Reprogrammed Funds). Please note that the table below shows the federal funding available from the U.S. Department of HUD for the 2017/18 program year and the proposed amount from the City of Denton General Funds. Though the list of general fund recommendations is included in the Action Plan, the approval of the Plan does not include approval of those recommendations. General fund recommendations will be considered during the normal budgeting cycle and consider for approval in September 2017. A total of 83.68% of all CDBG and HOME funds has been allocated to low and moderate income activities. This is due to funds allocated to administration. Funding Available CDBG Funds HOME Funds General Funds Total Funds Annual HUD Grant Allocation $879,638 $348,084 $631,707 $1,859,429 Annual Estimated Program Income $8,000 $76,000 $0 $84,000 Prior -Year Reallocated Funds $35,740 $ $0 $35,740 Total $923,378 $424,084 $631,707 $1,979,169 Table 1— 2017/18 Funding Summary 2. Summarize the objectives and outcomes identified in the Plan This could be a restatement of items or a table listed elsewhere in the plan or a reference to another location. It may also contain any essential items from the housing and homeless needs assessment, the housing market analysis or the strategic plan. OMB Control No: 2506-0117 (exp. 07/31/2015) Below are the objectives and outcomes identified in the City of Denton's 2015-2019 Consolidated Plan for Housing and Community Development: 1. Decent Housing • Encourage homeownership by providing down payment and closing assistance to 30 low and moderate income households. • Maintain 235 existing affordable housing units for low and moderate income households including reconstruction, substantial rehabilitation and minor repairs for single-family housing units. • Encourage and maintain 32 affordable rental units including rehabilitation of substandard units and rehabilitation of multi -family units. 2. Suitable Living Environment • Provision of public facility and infrastructure improvements to benefit 10,000 people. • Provision of public services such as health and mental care, affordable day care, after school programs, senior services, transitional housing, programs for victims of domestic violence, disabled services, and advocacy services to benefit 2800 people. • Provision of homeless assistance activities for 6500 homeless persons especially extremely low income or those with no income, persons with physical and mental disabilities including temporary shelter, food and clothing to chronically homeless and those that have recently become homeless. 3. Evaluation of past performance This is an evaluation of past performance that helped lead the grantee to choose its goals or projects. The City's activities to meet the goals in the 2015-2019 Consolidated Plan are reported annually in the Consolidated Annual Performance and Evaluation Report (CAPER). Over the past several years, the City of Denton has focused on housing, public services and various public and non-profit facility improvements. Below is information on the number of households or persons served through the Community Development Block Grant and the Home Investment Partnerships Program from the 2015- 16 CAPER. The public services assistance numbers reflect the total number of persons served by the agencies receiving CDBG and General Fund support. The 2015/16 program year was the first year of Denton's 2015-19 Consolidated Plan for Housing and Community Development. Staff efforts throughout the year focused on housing, public services activities with an emphasis on homeless assistance and public facility improvements. Below is a 4 OMB Control No: 2506-0117 (exp. 07/31/2015) discussion of program year accomplishments: ➢ Affordable Rental Units: The Denton Affordable Housing Corporation completed the rehabilitation of one rental project. The agency is in the process of rehabilitating a six-plex rental project on Bolivar Street. Also, improvements to Fairoaks Senior Housing Project were completed during the 2016/17 program year. The Fairoaks Senior Housing Complex is a 41 -unit senior complex. ➢ Homeless Assistance: Funding was provided to Denton County Friends of the Family to meet the Homeless Assistance annual goal of 400. The agency provided assistance to a total of 303 people during the program year. ➢ Homeownership Assistance/Education: 2013 CDBG funding and HOME funds were available during the 2015 program year to assist a total of 8 households with homeownership assistance and minor repairs to their homes. Homeownership assistance numbers are lower than projected. Although interest rates have remained low, many buyers are having difficulty qualifying for mortgage loans due to increased lending standards and changes in loan guidelines (e.g. increased upfront and monthly MIP fee). Also, the availability of housing is at a historical low and prices making the situation a serious seller's market. This situation has made it extremely difficult for first-time homebuyer. Homes costing approximately $150,000 are extremely difficult to find. ➢ Housing Rehabilitation: CDBG and HOME funding was available to meet the Housing Rehabilitation goal of 47. The Minor Repair Program and Home Improvement Program assisted 34 households - 3 with home improvements and 31 with minor repairs. Increases in construction costs and the building permit process affected the number of accomplishments. ➢ Public Facilities and Infrastructure Improvements: Funding was available to meet the Public Facilities annual goal of 2,000 people. Projects will be completed during the 2016 program year. 2014 funding was available during the program year to complete the Fred Moore Day School Project and assist a total of 281 children. ➢ Public Services: Funding was available to meet the public services annual goal of 1173 people. The Denton City County Day School, Health Services of North Texas, Summer Camp and SPAN, Inc. provided assistance to 695 people. Most of the agencies were able to meet their 2015 goal. During the 2015/16 program year, the City of Denton also received General Funds and Emergency Solutions Grant through the State of Texas. Below are additional accomplishments during the 2015-16 program year by goals: • Public Services Accomplishments with General Fund dollars - An additional 2341 people were assisted • Homeless Assistance with General Fund and ESG funds - An additional 1844 people were assisted. • Homeless Prevention with General Fund and ESG funds - An additional 364 were assisted. 5 OMB Control No: 2506-0117 (exp. 07/31/2015) 4. Summary of Citizen Participation Process and consultation process Summary from citizen participation section of plan. To ensure citizen participation in the 2017/18 Action Plan process including the substantial amendment to the 2015 and 2016 Action Plans, the city followed its Citizen Participation Plan at all stages of the plan and amendments. A public hearing was held November 3, 2016. Spanish translations were provided at the public hearing. The public hearing updated citizens on the status of current programs and activities and asked the citizens how they felt the 2017 funds should be spent. The public hearing was held within a low and moderate -income neighborhood. Information on the public hearing was included in the Community Development Quarterly Newsletter. The Community Development Quarterly Newsletter was mailed or e-mailed to neighborhood associations; recreation centers and libraries; service agencies and beneficiaries; city council, Human Services Advisory Committee (HSAC) and Community Development Advisory Committee (CDAC) members; churches; applicants; contractors; participating lenders and realtors; employees; citizens who attended previous public hearings; and interested citizens. The newsletter which is in Spanish and English is available for pickup or viewing at all recreation centers, libraries, and the City of Denton's website. A notice was also placed in the Denton Record -Chronicle. Community Development staff also attended the Denia Neighborhood meeting on October 24, 2016. At the neighborhood meeting, staff updated residents on the status of current programs and activities, reviewed eligible activities, funding available for 2017 program year and requested comments from residents on how the federal funds should be spent. After the Action Plan was drafted, advertisements were placed in the Denton Record -Chronicle summarizing the plan and announcing to the public where the Action Plan would be available for review, and the process for submitting comments to the City of Denton. The draft Action Plan was available at the Community Development Department and on the City of Denton's web page. The advertisements also included information on the upcoming public hearing. All comments received from the public were addressed before submitting the plan to the U.S. Department of Housing and Urban Development. To ensure citizen participation at all stages of the 2016 Action Plan process, a public hearing was scheduled on May 23, 2017 during a City Council Meeting to give citizens the opportunity to comment on the 2017/18 proposed projects and activities. 5. Summary of public comments This could be a brief narrative summary or reference an attached document from the Citizen Participation section of the Con Plan. Below is a list of comments received at the public hearings on November 3, 2016 and May 23, 2017 and the Neighborhood Meeting on October 23, 2016: OMB Control No: 2506-0117 (exp. 07/31/2015) • Repair the dilapidated sidewalks on McCormick Streets from Willowwood to Parvin. Sidewalks are located on both sides of McCormick. They also indicated that the sidewalks are not ADA accessible and are not safe for the kids that use the sidewalks to access Borman Elementary. • Shelter for the homeless. Street repair on Bradshaw St. Maintenance of the creek in Fred Moore Park. • Afterschool and mentoring programs. • 701 Elm St, the building of a bar garden should not be allowed next to a fitness center and should not be allowed to pass inspection and be granted a building permit. • Fred Moore Park Creek Improvements, bricks pile up; • Repave and re -level Bradshaw Street; • Housing programs; • Sidewalks on Bradshaw; • Repave Hinkle; • Repave Maple. Below is a list of comments received during the 30 -day comment period for the 2017 Action Plan: • No comments were received during the 30 -day comment period. 6. Summary of comments or views not accepted and the reasons for not accepting them Public comments were reviewed with the Community Development Advisory Committee and considered in the development of the 2017 Action Plan. Public comments were also forwarded to City departments. 7. Summary The Action Plan was developed by requesting public input regarding the use of federal funds. Funding applications were available in November and December 2016. Application training was provided by Community Development Staff on both community development and human services applications. The Community Development Advisory Committee and the Human Services Advisory Committee reviewed applications and held funding hearings in February and March 2016. Each committee developed a set of funding recommendations. The 2017 Action Plan was developed based on the CDAC and HSAC recommendations. 7 OMB Control No: 2506-0117 (exp. 07/31/2015) V 0 0 � 0 0 co > '> a o 0 4a � C C Gl N N Q Q O O CL N N N N E E E E O O U U a� E Z Z Z O O Z Z LU w Gl O v L Q% L Cp O 0 Q CO " a a (7 w o O U 2 V-1 .� C O Ln c E CL 0 N c v o � c � N � E u U m O U C O C N O U C v E Q O �.o > N > v M Ln � � c m � � o E m E o o rn c 'co s E a w w i AP -10 Consultation — 91.100, 91.200(b), 91.215(1) Introduction The City of Denton utilizes a variety of methods to encourage on-going participation from residents, social service providers, and community development organizations. The participation process for the Consolidated Plan included public hearings, public comment period; a community survey for citizens and non-profit agencies, participating in coalitions and committees, consultation with various city departments; and consultation with housing providers. Provide a concise summary of the jurisdiction's activities to enhance coordination between public and assisted housing providers and private and governmental health, mental health and service agencies (91.215(1)) The City of Denton's Community Development Division coordinates the citizen consultation process for the five-year Consolidated Plan and each annual Action Plan. The Citizen Participation Plan (CPP), as approved by City Council, sets forth the City's policies and procedures for citizen input and participation in the grant process. After approval, copies of the Consolidated Plan and the Action Plan are published and made available at three to four city locations and the City's website. At least two of these locations are located it low to moderate -income neighborhoods. The CPP also describes the process affording citizens and organizations the opportunity to provide the City with information on housing and community development needs, as part of the preparation of the Consolidated Plan and Action Plans. Additionally, the City conducts at least two public hearings during the development process before the Consolidated Plan and the Action Plan are published. An additional public hearing takes place during the 30 -day comment period in order to obtain citizen's views and to respond to comments and questions. This final public hearing is held in conjunction with a scheduled City Council meeting. The City also sends notifications to various State agencies, local neighborhood groups, city departments, and service organizations as part of the consultation process. The City of Denton has a very strong network of service providers including those providing housing, education, health care and other needed services. Over the past four years, the United Way of Denton County, the City of Denton, the Denton Independent School District and other organizations have joined together to review and discuss the provision of services in the Denton area in an attempt to maximize the benefits derived from available resources. Below is a list of the committees that have been developed to assist in improving the coordination of services: • Denton County Homeless Coalition • Homeless Leadership Team, collective impact project • Behavioral Health Leadership Team, a collective impact project • Community Health Council • Denton Hunger Coalition • Early Childhood Coalition serving the North Texas Region • United Way's Community Needs Assessment Committee OMB Control No: 2506-0117 (exp. 07/31/2015) Describe coordination with the Continuum of Care and efforts to address the needs of homeless persons (particularly chronically homeless individuals and families, families with children, veterans, and unaccompanied youth) and persons at risk of homelessness. The City of Denton in Denton County is a part of the Texas Balance State Continuum of Care (CoC) operated by the Texas Homeless Network (THN). In collaboration with our local homeless coalition, the Denton County Homeless Coalition (DCHC), the CoC sets priorities for housing and supportive services to address the needs of homeless persons (particularly chronically homeless individuals and families, families with children, veterans, and unaccompanied youth) and persons at risk of homelessness. As an active participant in the DCHC and CoC, the City of Denton is working in collaboration and in support of these priorities. Coordination with the CoC offers expanded access to funding, quality collaborative tools, and greater knowledge resources. Collaboration includes improved data collection and better management of available resources by improving the Homeless Management Information System (HMIS) collections and increasing the number of contributors to HMIS locally. CoC collaboration improves the relevance of data collected through the annual Point -in -Time (PIT) homeless count. Lastly, CoC collaboration has led to the implementation of a Coordinated Entry System (CE) as a part of a larger, developing community housing crisis response system. In addition to local federal CoC funds, Emergency Solutions Grant (ESG) are used locally to provide persons experiencing homelessness with housing and supportive services for housing stability. The City of Denton, as lead agency in the Denton County ESG partnership collaborative, works to ensure funds for supportive housing programs are in alignment with CoC priorities and that the programs address the needs so persons experiencing homelessness can transition out of homelessness into housing and those at -risk of homelessness are prevented from becoming homeless. CoC and local data are vital to the effort to identify and address those housing needs. Based on our community data from HMIS analysis, CE, and the annual PIT Count, those experiencing homelessness in Denton County include sheltered and unsheltered homeless; chronically homeless both in shelter and those living in places not fit for human habitation who are in need of housing services; families and individuals who are fleeing domestic violence or at risk of homelessness due to imminent danger; and low-income, at - risk Individuals and families at imminent risk of eviction who otherwise would be homeless without assistance. Our prioritized populations are veterans, chronically homeless, victims of domestic violence, and persons experiencing mental health crisis who are homeless. 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SF -424 applications for CDBG and HOME are available in the appendix section. The City of Denton's estimated total federal funds and program income funding for 2017/18 is $1,347,462 and includes $35,740 in reprogrammed funds from prior year funds. Besides the federal funds, the City of Denton is also leveraging an additional $730,463 in local funds from the City of Denton General Funds. Please note that the table below shows the federal funding available from the U.S. Department of HUD for the 2017/18 program year. Below is the list of projects that are recommended to be funded with General Funds for the 2017/18 fiscal year: Agency Description Amount Goal Outcomes CASA of Denton Co. Court Advocacy $20,000 Public Services 181 persons Communities in Schools Dropout Prevention $21,200 Public Services 540 persons Denton Christian Preschool Childhood education $26,000 Public Services 90 persons Denton Community Health Clinic Behavioral Health $20,000 Public Services 50 persons Denton Community Health Clinic Care Coordination $5,000 Public Services 200 persons Denton Community Health Clinic Diabetes Eye Exam $5,000 Public Services 159 persons Denton County MHMR Ctr. HCS -Residential Care $15,000 Public Services 32 persons Fred Moore Nursery School Childhood Education $48,000 Public Services 328 persons Giving HOPE, Inc. Transitional Housing $26,500 Homeless Assistance 58 persons Health Services of North Texas Indigent Primary Care $45,000 Public Services 4733 persons Interfaith Ministries Rent/Shelter Assistance $5,000 Homeless Prevention 150 persons Monsignor King Homeless Ctr, Outreach Center $20,000 Homeless Assistance 275 persons RSVP: Serving Denton Co. VISTA Program $12,500 Public Services 29 persons RSVP: Serving Denton Co. Volunteers $5,000 Public Services 300 persons Special Programs for Aging Needs Congregate/delivered meals $10,155 Public Services 370 persons Youth and Family Counseling Counseling $5,000 Public Services 245 persons Homeless Leadership Team Coordinated Entry/HMIS $18,000 N/A N/A 23 OMB Control No: 2506-0117 (exp. 07/31/2015) General fund recommendations will be considered during the normal budgeting cycle and consider for approval in September 2017. A total of 83.68% of all CDBG and HOME funds have been allocated to low and moderate income activities not including administration. # Project Name 1 City of Denton - Parks and Recreation 2 Community Development Administration 3 DAHC Affordable Housing Opportunity Program 4 Denton City County Day School 5 Denton County Friends of the Family 6 Fairoaks Senior Housing Complex Improvements 7 Habitat for Humanity Housing Project 8 Home Improvement Program 9 Homebuyer Assistance Program 10 Infill New Construction Program 11 Minor Repair Program 12 Salvation Army of Denton 13 Special Programs for Aging Needs Table 9 — Project Information Describe the reasons for allocation priorities and any obstacles to addressing underserved needs The City of Denton's CDBG and HOME allocations have not been sufficient to allow for the funding of large or extensive housing, economic development or public works projects. Geographic standards do not apply to city-wide programs such as Minor Repair, Homebuyer Assistance, Home Improvement Program, Infill New Construction Program, Habitat for Humanity and public services programs. The small amount of funds available, and continued reductions for the past several years has limited the use of funds. Public facility and public improvement projects have been completed in residential areas meeting HUD's low to moderate -income standards, generally near the city's core. Housing assistance investments, including the Minor Repair, Home Improvement, Infill New Construction Program and Homebuyers Assistance programs are based on a first-come, first-served basis and there are no specific geographic areas. However, the Home Improvement program does set forth some specific guidelines regarding the age of the housing. Regardless of the area income, housing units that were built 20 years ago or less, are not eligible for Home Improvement Program assistance and units that were built 15 years ago or less are not eligible for the Minor Repair Program. These 24 OMB Control No: 2506-0117 (exp. 07/31/2015) requirements support the use of funds in older neighborhoods. All investments in public facilities and/or public improvements are based on requests received from residents of the low to moderate -income block groups and other areas of the city. After a request has been made, City staff will assess the need for the improvement and the project cost. The City staff evaluation will determine which requests are in a "high" needs category, are an appropriate use of CDBG funds, and are projects with costs that can be covered under the CDBG allocation. Denton Affordable Housing Corporation (DAHC), the only certified Community Housing Development Organization (CHDO) currently serving Denton, generally purchases rental units and homebuyer units in low to moderate income areas due to the cost of units in higher income areas. However, in some instances, housing units that have been foreclosed upon in higher income areas may also be purchased. DAHC units are renovated and sold or rented to eligible households. The primary obstacle to addressing underserved needs remains a lack of adequate federal funding. The following are actions planned to address obstacles to meeting underserved needs: • Seek out additional funding sources to support housing and public services activities; • Assist local non-profit organizations in obtaining grants or other funding to support their efforts; • If necessary, act as a "pass through" organization to continue use of State and other funding to support homeless prevention and services for the homeless; • Continue to support existing public (social) services programs through the allocation and administration of City of Denton general fund dollars. • Work with the City's Development Services Department to implement recommendations included in the Denton Plan 2030. 25 OMB Control No: 2506-0117 (exp. 07/31/2015) IA u @ 'O CL � � E E m Ln v @ .0 a 00 � a El § / 0 k � E E m u a q g w § e � / / \ $ � •� / ƒ ® ( > k § C / k u § 2 •E ° e § °u } / _r_ E § E f E > E E e 7 ) " k / Q / ./ \ _ � = § ./ '[ � e \ . ƒ •§ f ƒ 0 / / \ '± 1 » t § [ _ 7 / e u e E $ e \ / f¥ t c } / \ E® > 6 = o � \ \ \ e e e 2 e0 \ / % / / / $ 2 .° / / ƒ \ / / \ > » '> d = o x 7 t .2 -0 e o E U ° 's ƒ E E \ y \ y / 2 a"/ U o\ E 2 %/ O 2/ z z 0 / 4 § k k 2 kCL/ § $ E 2 $ E w 0. � k/ k k z 9 7 ° 2 z § 9 < m k c 22 @ E § w °$ @ o 2 : m c . 2 to a $ z 0 L CL -0ia $ » r14 / t E \ t \ ( § d E E ƒ E ƒ \ g '� / \ \ & \ \ } E \ 2 G o ° \ k [ ® \ ° o / / o E / E f •� m / 2 § L R / / 0 R I • 0 § $ CLca ° 2 t Uo 0 } / U u m R § e G e E ° « _ 2 / \ (m % g = ° §E - /e ƒ00 \ / /00 k e LU -C e em e \ d \>± 41 41 o / zƒo/ z m =/ g U z r- \ I e � / CL V). 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( 2 / 2 t 2 / $ E 0 _ K E \ / E 0 \ ) / 0 / » E : / \ E / u ƒ o 2 ƒ \ § 2 E .E o u / \ 41 L uj / E ƒ / 5 z f ® / CL 0 7 0 \ \ E /2 / / § e 5 g z ' 2 / } § 0 § E Ln .g \ $ t E » _ \ 4- C E ± ± \ •§ 2 1 % « @ \ \ \ $ o E \ B m = o / •§ ° " d_ R « § § \ e a- a_ U�= d o k k � E % § 2 § < E : 2 $ ) 2 § 0 a q \ / \ § E .\ \ / ƒ ƒ / _0 / / o 2 E . / I o ƒ /2 u k % \ u / $ 0 0 u CL r140 ) � / o / � / v 0 0 2 \ \ 7 E \ 0 $ / \ / / E k CL $ / ? ƒ \ y E $ % $ \ 0 U- 0 0 / 6 0 $ ƒ e >§ $ E \ k ƒ 0) to 4 § / u %4a 0 0 2 & E -0 \ § %I -- 1 ƒ \ } '� / 0 E m u '> # / { % 0 E < E 0 \ E E _ C f u ¥ \ g / k •E .g s - , E @ U o > / 2 2 2 $ \ a j ./ 0 r _ •$ 2 k $ 2 � 'E ° \ q 9 (V 7 2 c •> d\ \ o k f @ � k B k & % 0 o @ / / } / a_ c U o e 2 E o 2< 3 2 CL -1 E 0 / / § E .\ ƒ ƒ 0 E . / I /2 u \ u / E 0 0 u ) o / � / v 0 \ 7 E $ \ / / E \ # / $ o / \ y E $ U 0 / 6 0 $ ƒ e >§ $ E \ k ƒ 0) to B 0 / u 0 0 & E -0 \ § 4- 1 ƒ \ } '� / 0 E m u '> # / { % 0 E < E 0 \ > / 2 / o 0 4 [ u / u ¥ g / •E .g s - , E @ U o D / 2 2 \ \ % ° \ 0 � j ./ 0 r _ •$ 2 \ $ 2 � 'E ° \ q 9 { 7 z 2 •> d\ \ o k f @ � k B = 2 & % 0 o / / / } a_ a_ U o e 2 e m 2< 0 / 4 § k 4� § E 2 k cL § $ 2 _ / E c / 2 / CL -0g � � k « E : $ Ln % 2 o / ) % § to / k % k k a G z LL 0 e 3 2 CL -1 E r1m, / AP -50 Geographic Distribution — 91.220(f) Description of the geographic areas of the entitlement (including areas of low-income and minority concentration) where assistance will be directed The City of Denton's CDBG and HOME allocations have not been sufficient to allow forth efunding of large or extensive housing, economic development or public works projects. Geographic standards do not apply to city-wide programs such as Minor Repair, Homebuyer Assistance and public services programs. The small amount of funds available, and continued reductions for the past several years has limited the use of funds. Public facility and public improvement projects have been completed in residential areas meeting HUD's low to moderate -income standards, generally near the city's core. Geographic Distribution Target Area Percentage of Funds Table 11- Geographic Distribution Rationale for the priorities for allocating investments geographically The City of Denton does not currently direct its investments in specific geographic areas. Discussion Housing assistance investments, including the Minor Repair, Home Improvement, Infill New Construction Program, and Homebuyers Assistance programs are based on a first-come, first-served basis and there are no specific geographic areas. However, the Home Improvement program does set forth some specific guidelines regarding the age of the housing. Regardless of the area income, housing units that were built 20 years ago or less, are not eligible for Home Improvement Program assistance and units that were built 15 years ago or less are not eligible for the Minor Repair Program. These requirements support the use of funds in older neighborhoods. All investments in public facilities and/or public improvements are based on requests received from residents of the low to moderate -income block groups and other areas of the city. After a request has been made, City staff will assess the need for the improvement and the project cost. The City staff evaluation will determine which requests are in a "high" needs category, are an appropriate use of CDBG funds, and are projects with costs that can be covered under the CDBG allocation. 35 OMB Control No: 2506-0117 (exp. 07/31/2015) Affordable Housing AP -55 Affordable Housing — 91.220(g) Introduction The City's housing priorities are encouraging homeownership opportunities, maintaining existing affordable housing units and encouraging and maintaining standard affordable rental units for low and moderate income persons. For the 2017-18 program year, these priorities will be addressed through the following activities: rehabilitation of rental properties by the Denton Affordable Housing Corporation, new construction of a single-family units by Habitat for Humanity and City of Denton, rehabilitation or reconstruction of housing units through the Home Improvement Program, minor rehabilitation of housing through the Minor Repair Program, rehabilitation of rental units for Fairoaks Senior Complex, and down payment assistance for homebuyers through the Homebuyer Assistance Program. One Year Goals for the Number of Households to be Supported Homeless 1 0 Non -Homeless 56 Special -Needs 41 Total 97 Table 12 - One Year Goals for Affordable Housing by Support Requirement One Year Goals for the Number of Households Supported Through Rental Assistance 46 The Production of New Units 2 Rehab of Existing Units 39 Acquisition of Existing Units 10 Total 97 Table 13 - One Year Goals for Affordable Housing by Support Type Discussion Not applicable. 36 OMB Control No: 2506-0117 (exp. 07/31/2015) AP -60 Public Housing — 91.220(h) Introduction Not applicable. The City of Denton has no public housing units. Actions planned during the next year to address the needs to public housing Not applicable. The City of Denton has no public housing units. Actions to encourage public housing residents to become more involved in management and participate in homeownership Not applicable. The City of Denton has no public housing units. If the PHA is designated as troubled, describe the manner in which financial assistance will be provided or other assistance Not applicable. The City of Denton has no public housing units. Discussion Not applicable. The City of Denton has no public housing units. 37 OMB Control No: 2506-0117 (exp. 07/31/2015) AP -65 Homeless and Other Special Needs Activities — 91.220(i) Introduction This section describes the activities planned during the 2017/18 program year to address the needs of persons who are homeless and other non -homeless needs. Describe the jurisdictions one-year goals and actions for reducing and ending homelessness including Reaching out to homeless persons (especially unsheltered persons) and assessing their individual needs Understanding that the community must identify and continually engage all sheltered and unsheltered persons who are currently experiencing homelessness including those who are in jeopardy of experiencing chronic homelessness. City of Denton funding partners participate in coordinated efforts to outreach to persons experiencing homelessness. The City of Denton facilitates collaboration among nonprofit partners and Coordinated Entry (CE). Our local CE system is a process through which persons experiencing homelessness are assessed for their housing needs and referred to the most appropriate housing intervention available with the goal to shorten the length of time a person is homeless. Through community CE planning efforts, we have a communication plan being implemented for outreach to the public and engaging all stakeholders to help them better understand the process for outreach and referral into our CE system. To directly reach out to sheltered and unsheltered homeless persons, ESG partner, Giving Hope, Inc's (GH) Outreach Coordinator/Housing Navigator completes weekly street outreach in collaboration with the Denton Police Department, Denton County Veterans Coalition volunteers and other local service providers. The street outreach team provides collaborative case management delivered directly to the unsheltered homeless on the street. All street outreach clients are assessed for needs and intakes are entered into HMIS. When possible, they are also assessed for housing need (CE) through our shared housing assessment, the VI-SPDAT (or F-VI-SPDAT for families). Most often the Street Outreach Coordinator/Housing Navigator is referring to one of the local shelters for emergency housing, to housing assistance providers and to other supportive services based on the clients identified need. Annually, the street outreach lead, GH, produces a Street Outreach Barriers Report that helps identify best practices for reaching out to persons experiencing homelessness on the street and it provides an assessment of their needs. Case Managers at Denton County Friends of the Family (DCFOF) and The Salvation Army Denton, a Georgia Corporation (TSA) are reaching out to clients receiving shelter services. DCFOF's Crisis Line staff and Community Educators reach out daily to persons experiencing homelessness and those at -risk. DCFOF Community Educators and TSA Coordinators lead outreach efforts at community events to educate the community about available services. Through DCFOF's 24 housing crisis hotline and a dedicated Outreach location, family violence and sexual assault survivors experiencing homelessness 38 OMB Control No: 2506-0117 (exp. 07/31/2015) can be referred to emergency shelter, legal advocacy, individual and group professional counseling, education/employment assistance, life skills, childcare, transportation, financial empowerment, food pantry, and support. The primary goal of this program is victim safety and restoration. As a part of the housing crisis response system, shelters utilize CE for all clients in need of housing assistance. Case managers complete the VI-SPDAT (or F-VI-SPDAT for families) and the assessments are entered into HMIS. HMIS assessment places the client on our Housing Priority List (HPL) for a referral to the appropriate provider for a housing solution based on the clients assessed housing needs. We have a workaround that allows our DV provider to complete the same assessment and then provide de - identified information for inclusion on the HPL. To round out the housing crisis response system, housing assistance provider, Giving Hope, Inc.'s (GH) Case Manager completes scheduled visits to both shelters as outreach to help reduce barriers to clients in need of housing assistance. Case managers perform outreach to clients on the HPL when Rapid Re- housing housing assistance is identified. The system is aligned with other non-ESG programs such as GH's PSH and Denton County MHMR's PSH programs that are also pulling people off of the HPL as housing units and funding for housing assistance is available. Housing stability is an important part of the process so Christian Community Action (CCA) and GH's case managers are reaching out to persons at -risk of homelessness. Case Managers are working with persons at -risk of homelessness to provide short-term housing assistance and housing stability supportive programs and services. Addressing the emergency shelter and transitional housing needs of homeless persons The City of Denton addresses the emergency and transitional housing needs of persons experiencing homelessness by directly supporting both types of service delivery through the City's Human Services Grant; Community Development Block Grant (CDBG) funds; acting as lead agency for a collaborative using Emergency Solutions Grant (ESG) Funds awarded through the Texas Department of Housing and Community Affairs (TDHCA) and dedicated human resources. These are examples of how the City coordinates local resources and leverages local tax revenues, state of Texas distributed HUD funds, and federal CDBG funds ensure the emergency shelter and transitional housing needs of homeless persons are assessed. Through the implementation of Coordinated Entry (CE) and data sharing through HMIS reporting, the community completes data analysis of HMIS reporting for all homeless programs including emergency shelter and supportive housing programs. The community also assesses the emergency shelter and transitional housing needs through: performance reporting by direct service providers; the community's annual Point -In -Time Count; and the CE's assessment tool and the Housing Priority List (HPL). The CE assessment tool and HPL provide key data for the community to complete a comprehensive analysis of the homeless system to identify gaps in housing and use data to inform housing, programming and funding decisions. Through direct services provided by Client Intake Coordinator, Case Manager, Program Coordinator, Outreach Coordinator/Housing Navigator, and Crisis Intervention Specialist at partner agencies Christian Community Action (CCA), Denton County Friends of the Family (DCFOF), Giving Hope, Inc (GH), and The 39 OMB Control No: 2506-0117 (exp. 07/31/2015) Salvation Army Denton, A Georgia Corporation (TSA) client housing needs are assessed during each intake and referral. Specifically in each program, under the direction of the Outreach Coordinator/Housing Navigator, all street outreach clients are assessed for needs and intake data are entered into HMIS. Client Intake Coordinators at DCFOF and Case Managers TSA are assessing needs of the shelter clients during intake, CE assessments, and through on-going case management. DCFOF DV victims are assessed through its 24 hour crisis hotline or during an intake at its Outreach Office for immediate safety and housing needs. If a victim is deemed as homeless or at risk of imminent homelessness due to a safety concern as a direct result of family violence or sexual assault, the victim may be screened in to emergency shelter. If a victim is deemed as homeless or at risk of homelessness for reasons other than safety concerns, the victim is given access to a case manager that assists with applying for rapid rehousing and transitional housing programs based on individualized needs of the person and/or family. Supportive housing is specifically designed to transition sheltered and unsheltered homeless to permanent housing. It is another housing strategy where the process includes assessment of needs through case management services. The CCA case manager provides housing stability case management services where assessment is necessary to determine which stability programs are needed. The case manager for GH assesses needs and combines case management, supportive services, referrals, and housing assistance to help individuals and families referred by shelters and those referred by Street Outreach Coordinator/Housing Navigator. The use of emergency shelter and transitional housing is a stop -gap measure until a permeant housing options is available to the client or to provide more intensive housing stability case management to ensure a stable transition to independent living. Helping homeless persons (especially chronically homeless individuals and families, families with children, veterans and their families, and unaccompanied youth) make the transition to permanent housing and independent living, including shortening the period of time that individuals and families experience homelessness, facilitating access for homeless individuals and families to affordable housing units, and preventing individuals and families who were recently homeless from becoming homeless again Evidenced based practice supports providing housing assistance programs that combine the financial housing assistance, case management, and supportive services to help persons experiencing chronic homelessness, families and children, unaccompanied youth, and/or veterans and their families' transition to permanent housing and independent living. As described in previous sections, the City of Denton and partners like the ESG partnership collaborative are a part of a larger developing community housing crisis response system. Partners coordinate efforts to help persons or households make the transition to permanent housing and independent living. Through the implementation of Coordinated Entry (CE) there is a process through which persons experiencing or at -risk of homelessness are assessed for their housing needs and referred to the most appropriate housing intervention available. The CE assessment tool provides key data for the community to complete a comprehensive analysis of the homeless system to identify gaps and use data to inform housing, programming and funding decisions. 40 OMB Control No: 2506-0117 (exp. 07/31/2015) Through direct services provided by Client Intake Coordinator, Case Manager, Program Coordinator, Outreach Coordinator/Housing Navigator, and Crisis Intervention Specialist at partner agencies Christian Community Action (CCA), Denton County Friends of the Family (DCFOF), Giving Hope, Inc (GH), and The Salvation Army Denton, A Georgia Corporation (TSA) client housing needs are coordinated among partners. The Street Outreach Coordinator/Housing Navigator provides collaborative case management delivered directly to the unsheltered homeless on the street. All street outreach clients are assessed for needs and entered into HMIS. When possible, the unsheltered are also assessed for housing need through our shared housing assessment, the VI-SPDAT (or F-VI-SPDAT for families). Most often Street Outreach Coordinator/Housing Navigator is referring to one of the local shelters, DCFOF and TSA for emergency housing; to housing assistance programs, GH Rapid Re -housing; to PSH programs with GH and Denton County MHMR; and the Denton Housing Authority for voucher assistance; and to other supportive services in the community that ensure housing stability and a swift transition to independent living. Case Mangers at DCFOF and TSA are implementing the CE process which is the assessment of housing vulnerability and housing assistance needed. Case mangers complete the VI-SPDAT (or F-VI-SPDAT for families) and it is entered into HMIS or comparable database. HMIS assessment places the client on our Housing Priority List (HPL) for referral to the appropriate provider for a housing solution based on the clients assessed housing needs. We have a workaround that allows our DV provider to complete the same assessment and then provide de -identified information for the HPL. Because clients have other needs that support housing stability, DCFOF and TSA assists clients with education/employment assistance, life skills, transportation, financial empowerment, and applying for government benefits and support. DCFOF's group programming and individual case management is provided to victims to empower them to make fiscally responsible choices and set achievable goals in creating and maintaining independence. Advocates and counselors are available to assist victims with any barriers they may face including pressing legal and safety needs as well as emotional stability and restoration. Shelters utilize CE for clients in need of housing assistance. To round out the housing crisis response system, housing assistance provider, Giving Hope, Inc.'s (GH) Case Manager utilizes CE to pull people off the Housing Priority List (HPL) in HMIS when Rapid Re- housing housing assistance is identified. The system is aligned with other non-ESG programs such as GH's PSH and Denton County MHMR's PSH programs that are also pulling people off of the HPL as housing units and funding for housing assistance is available. Housing stability is an important part of the process so Christian Community Action (CCA) and GH's case managers are assisting persons at -risk of homelessness. Case Managers are working with persons at -risk of homelessness to provide short-term housing assistance and housing stability supportive programs and services that assist with permanent and independent housing stability. As a compliment to the housing crisis response system, one of the ESG collaborative partners hosts an annual summit as a part of a broader community Landlord Engagement Initiative to increase the 41 OMB Control No: 2506-0117 (exp. 07/31/2015) awareness of landlords about homeless prevention programs and increase the number of landlords willing to lower barriers to housing and accept previously homeless households. As a part of the housing crisis response system, the system itself is designed with specific strategies to shorten the length of time a person or family experiences homeless to move the homeless to housing and to prevent individuals and/or families who were recently homeless from becoming homeless again. The strategy requires targeted coordination of services; quality data collection and analysis; and a process through which persons experiencing or at -risk of homelessness are assessed for their housing needs and referred to the most appropriate housing intervention available as soon as possible. Through City of Denton general funds, Community Development Block Grant (CDBG), and ESG funding, partner agencies receive support to participate in Coordinated Entry (CE) and HMIS reporting (or HMIS comparable database). The data collected provides analysis of the period of time that individuals and families experience homelessness. The CE system is specifically designed to reduce the time that it takes for a person who is homeless to have housing needs identified and referred to the right housing option. Client Intake Coordinator, Case Manager, Program Coordinator, Outreach Coordinator/Housing Navigator, and Crisis Intervention Specialist at partner agencies Christian Community Action (CCA), Denton County Friends of the Family (DCFOF), Giving Hope, Inc. (GH), and The Salvation Army Denton, A Georgia Corporation (TSA) coordinate client housing services to help shorten the time it takes to make the transition to permanent housing and independent living. Through direct services provided by Client Intake Coordinator, Case Manager, Program Coordinator, Outreach Coordinator/Housing Navigator, and Crisis Intervention Specialist at partner agencies Christian Community Action (CCA), Denton County Friends of the Family (DCFOF), Giving Hope, Inc (GH), and The Salvation Army Denton, A Georgia Corporation (TSA) client housing needs are coordinated among partners with the specific outcome that effective coordination reduces the time an individual and/or family experiences homelessness. For example, DCFOF aims to shorten periods of homelessness and prevent future homelessness for domestic violence and sexual assault victims by taking a 'safety first' approach. Many DV clients become homeless because homelessness is their only option in order to leave an abusive or dangerous situation. By focusing on safety, legal, and financial needs through our advocacy team as well as emotional stability and education from our counseling team, victims are provided with comprehensive services that help them better understand how to safely start over and rebuild their lives. With safe and healthy choices at the forefront of their decision making, victims are more likely to develop independent successful homes and less likely to return to an abusive situation or enter a new relationship based on power and control. To help prevent individuals and/or families who were recently homeless from becoming homeless again, the Rapid Re -housing (RRH) partner, GH, case manager provides housing stability case management and supportive services combined with the housing assistance. Generally, homeless prevention assistance is three to six -months but RRH can provide extended support for clients who were assessed to need longer support necessary to ensure housing stability. 42 OMB Control No: 2506-0117 (exp. 07/31/2015) Helping low-income individuals and families avoid becoming homeless, especially extremely low-income individuals and families and those who are: being discharged from publicly funded institutions and systems of care (such as health care facilities, mental health facilities, foster care and other youth facilities, and corrections programs and institutions); or, receiving assistance from public or private agencies that address housing, health, social services, employment, education, or youth needs. The most effective tool for assisting low-income individuals and families to avoid becoming homeless is to ensure there are resources to prevent individuals and families at risk from becoming homeless in the first place. Leveraging all funding that supports homelessness prevention provides a framework for a collaboration among all the systems of care ensuring low-income families avoid becoming homeless. These coordinated strategies also work to improve community capacity by seeking to increase funding for homelessness prevention programs including housing stabilization resources; case management; and supportive services needed to help maintain housing. Specifically ESG homeless prevention funds are targeted towards two main populations and groups that include Families and individuals that currently have housing but who are facing eviction or who may be at risk of becoming homeless. Christian Community Action (CCA) and Giving Hope, Inc. (GH) have case managers working with individuals and families identified at -risk in homeless prevention programs. Case managers assess qualification and provide them with temporary rent or utility bill assistance to prevent the individual or family from becoming homeless. The programs also provide a variety of case management and self-sufficiency programs to ensure housing stability. Case management support is maintained through a minimum of monthly counseling in one or more housing stability programs like budget planning, financial management, employment counseling, etc. Case managers are working to ensure the household has stability and can be self-sufficient once assistance ends. Shelters work to avoid discharging clients back into homelessness. Denton County Friends of the Family (DCFOF) and The Salvation Army Denton, a Georgia Corporation (TSA) help low income individuals and families receiving assistance from public and private agencies by coordinating with ESG partners and other government and private programs to extend shelter stays for shelter residents at their maximum stay time while clients work with the aforementioned programs to secure housing, employment, education, and other needs. Often sheltered individuals must wait extra time when requesting rapid rehousing funds or pending property readiness for housing. DCFOF Residential Advocates assist sheltered individuals by helping them prepare extension requests, granted weekly, which are approved by the Shelter Director so that individuals and families avoid returning to homelessness while they work in coordination with Housing Case Managers at partnering agencies. Housing case managers work directly with DCFOF Residential Advocates to understand barriers these families and individuals face by remaining in weekly contact and collaborating on expedited entry into housing assistance. For those who are likely to become homeless after being discharged from a publicly funded institution or system of care, Coordinated Entry (CE) is also recommended. Through community CE planning efforts we have a communication plan for educating the public and engaging all stakeholders to help them better understand the process for engagement and referral into our CE system. Current strategies 43 OMB Control No: 2506-0117 (exp. 07/31/2015) include building working relationships with institutions and systems of care to ensure timely referrals to avoid becoming homeless upon discharge. Discussion In addition to the efforts discussed in previous sections, the City continues to support activities that ensure there are resources to prevent those who are not homeless, but have other special needs, from becoming homeless. Here are a few examples: • CDBG funds support SPAN's congregate and meal delivery programs that help the elderly and frail with food security and self-sufficiency that contribute to housing stability. • City's general fund support of CASA that ensure children aging out of the foster care system have resources and will not exit to homelessness. • ESG funds for street outreach programs for Giving Hope, Inc. provide outreach to the chronically homeless on the street. This program includes HIV testing to help identify those who are at risk and prioritize them for other permanent housing assistance programs. • City's general funds support of Denton County MHMR helps provide support to residential housing programs for persons with disabilities. • City's general funds support of Retired Senior Volunteer Program helps provide support to seniors. 44 OMB Control No: 2506-0117 (exp. 07/31/2015) AP -75 Barriers to affordable housing — 91.220(j) Introduction This section describes the City's plan to address barriers in affordable housing identified in the 2015 Analysis of Impediments to Fair Housing Choice (AI). Actions it planned to remove or ameliorate the negative effects of public policies that serve as barriers to affordable housing such as land use controls, tax policies affecting land, zoning ordinances, building codes, fees and charges, growth limitations, and policies affecting the return on residential investment The City of Denton's Analysis of Impediment to Fair Housing does not indicate that the current public policies create barriers to affordable housing. The following is an explanation of Denton's policies: 1. In February 2002, the City of Denton adopted the Denton Development Code, a document that unifies elements of zoning, subdivision regulation, environmental protection, site design standards, and other development regulation 2. The zoning regulations contain 10 districts that allow single-family dwellings. Mixed-use structures are encouraged in some districts allowing the development of retail or office on lower floors with multi -family residential above. Denton's comprehensive plan, Denton Plan 2030, and formerly The Denton Plan, will continue to guide the regulatory framework to encourage a diversity of population and income levels, accessibility to employment, recreation, school and community uses, and connection to public transit. 3. Construction codes allow for the renovation of existing, usually older and more affordable units. Under these codes, units would not have to bear the increased costs of new construction codes unless a health or safety issue is present. 4. Lots of record which may not meet current area requirements are "grandfathered" in some circumstances. 5. The City of Denton building code requirements are reviewed by the Health and Building Standards Commission. This commission is a council -appointed citizen committee. Members are generally from the development community and are careful to ensure that adopted codes do not discourage development activities. 6. The number of affordable housing units in the City of Denton as compared to other communities in Denton County indicates that current development policies do not hinder the development of a variety of housing units, including affordable units. Discussion The City of Denton Community Development staff is currently participating in a DFW Regional Assessment of Fair Housing. Denton and several other communities, including Dallas, Plano, McKinney, Garland, Frisco, and others are working to determine areas of need and activities that can assist communities in promoting fair housing throughout the DFW metroplex. 45 OMB Control No: 2506-0117 (exp. 07/31/2015) AP -85 Other Actions — 91.220(k) Introduction This section reports additional effects the City will undertake during the 2017-18 program year to address residents' housing and community development needs. Actions planned to address obstacles to meeting underserved needs • Seek out additional funding sources to support housing and public services activities; • Assist local non-profit organizations in obtaining grants or other funding to support their efforts; • If necessary, act as a "pass through" organization to continue use of State and other funding to support homeless prevention and services for the homeless; • Continue to support existing public (social) services programs through the allocation and administration of City of Denton general fund dollars. • Work with the City's Development Services Department to implement recommendations included in the Denton Plan 2030. Actions planned to foster and maintain affordable housing • Continue to provide down payment, closing cost, and principal reduction assistance to low and moderate -income homebuyers through the Homebuyer Assistance Program; • Fund new affordable housing development through Habitat for Humanity of Denton County; • Continue to fund the City's Home Improvement and Minor Repair programs to assist low and moderate income homeowners with repairs to their homes to meet their needs for safe and decent housing; • Continue to support the Denton Affordable Housing Corporation's (DAHC) efforts to increase the number of affordable housing units including their Affordable Housing Opportunity and Rental Rehabilitation programs; • Work with the Denton Housing Authority to support the development of additional affordable housing and obtain additional housing vouchers if available. • Work with the City's Development Services Department to implement recommendations included in the Denton Plan 2030. Actions planned to reduce lead-based paint hazards During the 2017-2018 program year, Denton plans to reduce lead-based hazards in Denton by ensuring that all lead-based regulations are met throughout any housing rehabilitation construction activity performed on homes built prior to 1978 including the Minor Repair Program, Home Improvement Program, Homebuyer Assistance Program, and DAHC's Rental Rehabilitation. Denton will also seek opportunities to educate the public, housing services customers, and contractors regarding the hazards 46 OMB Control No: 2506-0117 (exp. 07/31/2015) of lead-based paint. Actions planned to reduce the number of poverty -level families The City of Denton will continue to work with local non-profit organizations to administer programs designed to support lower income individuals and families. These programs will assist households in improving their financial status. Programs include: 1) free and/or low cost health care; 2) affordable child care; 3) mental health care services; 4) support for elderly households and others; develop housing initiatives to support veterans. The following are Denton's current efforts supporting the Consolidated Plan goal of low and moderate income persons having the opportunity to earn higher wages. • The City of Denton Economic Development staff participates with regional municipalities and the local Texas Workforce Commission Board in the North Central Texas Regional Economic Development Steering Committee for the purpose of addressing existing and future workforce skills needs of our respective and regional employers. The Committee is a participant in Texas Workforce Commission's High Demand Job Training Program that identifies and develops the skill sets of individuals for jobs in high -demand occupations in our respective region and cities. • Denton's Economic Development Partnership Board adopted a Strategic Plan that provides a means to address Denton's key workforce needs. • Denton ISD's Career and Technology Advisory Board industry partners provide curriculum expertise and internship opportunities to students enrolled in the district's 31 career skills and certification training programs covering 11 career fields. Dual high-school/college credit classes are offered to high school juniors and seniors. • North Central Texas College (NCTC) has developed certifications and associate degree programs for specific industry partners, such as the Petroleum Technology Certification and Associate Degree options. NCTC is a partner to businesses utilizing Skills Training grant funds. Actions planned to develop institutional structure The two institutional gaps stated in the 2015-2019 Consolidated Plan included the provision of homebuyer education classes for low and moderate -income new homebuyers and supportive housing. To meet the provision homebuyer education during the 2017-18 program year, Denton is investigating partnerships with HUD -approved Housing Counseling Agencies and Denton Affordable Housing Corporation to develop a more comprehensive educational program. Currently HUD -approved Housing Counseling Agencies are in the process of complying with the new Housing Counseling Certification Requirements. Agencies will have 36 months from the new rule to comply with the new regulations. As discussed in SP -40 the City will support a community organized collective Impact initiative with its funding partner the United Way of Denton County. In addition, the City will support collaborative 47 OMB Control No: 2506-0117 (exp. 07/31/2015) efforts of the Denton County Homeless Coalition (DCHC) and other service sector programs to ensure the community is organized to advocate; coordinate service delivery; improve effective use of available resources and provide leadership for long-term planning efforts among various homeless providers, homeless advocates and across multiple sectors. Strategies to move the homeless to housing and to shorten the length of time a person or family experiences homeless involve: • Supporting a coordinated access network to significantly reduce the time it takes for a person who is homeless to identify and access the right services needed. • Improving community capacity by seeking to increase local resources for housing programs including housing location and stabilization resources; case management; and supportive services. • Facilitating coordination of case management and supportive services to help the homeless have access to the services necessary to secure housing and maintain housing stability. • Increasing supportive housing options for those with prioritized special needs Actions planned to enhance coordination between public and private housing and social service agencies The City of Denton has a very strong network of service providers including those providing housing, education, health care and other needed services. Over the past four years, the United Way of Denton County, the City of Denton, the Denton Independent School District and other organizations have joined together to review and discuss the provision of services in the Denton area in an attempt to maximize the benefits derived from available resources. Below is a list of the committees that have been developed to assist in improving the coordination of services: • Denton County Homeless Coalition • Homeless Leadership Tea, collective impact project • Behavioral Health Leadership Team, a collective impact project • Community Health Council • Denton Hunger Coalition • Early Childhood Coalition serving the North Texas Region • United Way's Community Needs Assessment Committee City of Denton Community Development (CD) staff members will continue to participate in the above committees during the 2017-18 program year. The City is part of a strong team of service providers who are working to improve services for the low income community. In addition, the Mayor of Denton convened a Task Force in 2015 supported by Community development 48 OMB Control No: 2506-0117 (exp. 07/31/2015) (CD) staff to look at the issue of homelessness. Three priorities were identified by the task force. 1. Funding — Increase in Available Resources 2. Housing — Coordinated, Accessible, and Affordable 3. System Design —to establish a network of Community Collaboration Nested in the ideas for program and housing interventions for the homeless was stronger community collaboration around shared community goals to end homelessness; better data collection and sharing; involvement of a wider audience of stakeholders; and more intentional effort to help educate and inform the community about solutions to homelessness and community impact efforts. Ultimately, the priorities that the task force recommended to City Council for their support and consideration were to seek funding to seed new collaborative projects. The task force recommends have resulted in a public private partnership between the City of Denton and the United Way of Denton County to fund a coordinator position to oversee a collective impact project that will develop and implement community -wide coordinated strategies toward the shared goal of ending homelessness. Discussion Not Applicable 49 OMB Control No: 2506-0117 (exp. 07/31/2015) Program Specific Requirements AP -90 Program Specific Requirements — 91.220(1)(1,2,4) Introduction This section will describe activities planned with respect to all CDBG funds expected to be available during the program year (including program income that will have been received before the start of the next program year). Community Development Block Grant Program (CDBG) Reference 24 CFR 91.220(1)(1) Projects planned with all CDBG funds expected to be available during the year are identified in the Projects Table. The following identifies program income that is available for use that is included in projects to be carried out. 1. The total amount of program income that will have been received before the start of the next program year and that has not yet been reprogrammed; 0 2. The amount of proceeds from section 108 loan guarantees that will be used during the year to address the priority needs and specific objectives identified in the grantee's strategic plan; 0 3. The amount of surplus funds from urban renewal settlements; 0 4. The amount of any grant funds returned to the line of credit for which the planned use has not been included in a prior statement or plan; 0 5. The amount of income from float -funded activities. 0 Total Program Income: 0 Other CDBG Requirements 1. The amount of urgent need activities 0 2. The estimated percentage of CDBG funds that will be used for activities that benefit persons of low and moderate income. Overall Benefit - A consecutive period of one, two or three years may be used to determine that a minimum overall benefit of 70% of CDBG funds is used to benefit persons of low and moderate income. Specify the years covered that include this Annual Action Plan. — 2017 program year 80.77% 50 OMB Control No: 2506-0117 (exp. 07/31/2015) HOME Investment Partnership Program (HOME) Reference 24 CFR 91.220(1)(2) 1. A description of other forms of investment being used beyond those identified in Section 92.205 is as follows: The City of Denton does not utilize other forms of investment beyond those identified in 92.205(b). The City will not permit other forms of investment without the prior approval of HUD. 2. A description of the guidelines that will be used for resale or recapture of HOME funds when used for homebuyer activities as required in 92.254, is as follows: Recapture Policy The City of Denton utilizes HOME funds to provide assistance to first-time homebuyers with closing costs, down payment, prepaids and principal reduction through the City's Homebuyer Assistance Program. The maximum HOME subsidy for both programs will be $14,900. The HOME subsidy sets up a 5 -year recapture period and provided as a deferred forgivable loan at a 0% interest rate. Denton utilizes recapture as required by 24 CFR 92.254(a). Recapture occurs when the homebuyer sells the property during the affordability period, or when the recipient of HOME funds defaults by leasing the property, fails to maintain the property as a primary residence, the property is foreclosed on by any lender, or when the recipient violates the covenants contained in the Written Agreement between the homebuyer and the City of Denton or DAHC. The terms of recapture are contained in the Written Agreement. Homebuyers that receive direct down payment, closing cost, principal buydown assistance and/or a reduction of the sales price to below the market value to make the unit(s) affordable, will meet the affordability period if they remain in the home for the full required period of affordability as determined by the amount of the assistance received (five to fifteen years). The actual required period of affordability will be based on the total amount of the direct HOME assistance provided as noted below. The effective date of the beginning of the required period of affordability is the date all completion data is entered into IDIS and as documented by a fully executed Closing Disclosure, a copy of which has been placed in each individual homebuyer's file. Under "Recapture", if the home is sold prior to the end of the required affordability period a portion of the net sales proceeds from the sale, if any, will be returned to be used for other HOME -eligible activities. The portion of the net sales proceeds that is returned is equal to the amount of HOME funds invested in the property less the amount for each full month that the residence was occupied by the homebuyer or property owner as his/her/their principal residence. Any funds remaining after the distribution of the net sales proceeds to all lien holders, including the City of Denton, will be returned to the homeowner. In the event of a sale, short sale or foreclosure, the amount recaptured will be limited to the amount of 'net sales proceeds' available at the time of such occurrence. If there are insufficient funds remaining from the sale of the property and the City recaptures less than or none of the recapture amount due, and maintain data in each individual file that provides the amount of the sale and the distribution of the funds. This will document that there were no net sales proceeds; or the amount of the net sales proceeds was insufficient to cover the full amount due; and that no proceeds were distributed to the homeowner. 51 OMB Control No: 2506-0117 (exp. 07/31/2015) Other than the actual sale of the property, if the homebuyer breaches the terms and conditions for any other reason, e.g. no longer occupies the property as his/her/their principal residence, the full amount of the subsidy is immediately due and payable. Denton must immediately repay its HOME Treasury Account, from non-federal funds, for the full amount of the assistance provided whether or not it can recoup any or all of the funds from the homebuyer. 3. A description of the guidelines for resale or recapture that ensures the affordability of units acquired with HOME funds? See 24 CFR 92.254(a)(4) are as follows: Homebuyer Assistance Program: Federal assistance will be provided in the form of a 0% interest, deferred payment loan and will be secured by a HOME Written Agreement, Promissory Note and a Deed of Trust, fully executed and dated by all applicable parties. The Deed of Trust is recorded in the Real Property Records of Denton County. 4. Plans for using HOME funds to refinance existing debt secured by multifamily housing that is rehabilitated with HOME funds along with a description of the refinancing guidelines required that will be used under 24 CFR 92.206(b), are as follows: The City of Denton does not currently use of HOME funds to refinance existing debt secured by multi -family housing that is being rehabilitated with HOME funds. Discussion Under the HOME program, eligible applicants must have household income at or below 80% of the AMI and meet program guidelines to be eligible. Funding is available on a first-come first -serve basis and funding is available. Applications for program assistance are available at the Community Development (CD) Office. Under the Home Improvement Program, interested applicants complete a preliminary waiting list application and as funds are available, CD Staff will submit a letter requesting that if still interested an appointment can be made to assist with the application. Under the Homebuyer Assistance Program, interested applicants apply for a mortgage company and if eligible for a mortgage loan, the mortgage company submits application to the Community Development Division. CD staff schedule an appointment with applicant to review application and guidelines. Information on the programs is available on the City of Denton's website. The budget process for Denton's community development programs begins almost one year in advance of the fiscal year. HUD notifies the City as to the level of funding expected, the public participating process begins, applications are solicited locally and received by the Community Development Staff, the Community Development Advisory (CDAC) and the Human Services Advisory (HSAC) Committees. Recommendations are then formulated and presented to the Mayor and the City Council. The final step is the submittal of the City's formal applications to HUD for the funds allocated to Denton. The City's application is called the Action Plan. The City of Denton's fiscal year runs from August 1 to July 31. For example, Fiscal Year 2010 will begin August 1, 2010 and will run through July 31, 2011. 52 OMB Control No: 2506-0117 (exp. 07/31/2015) Any nonprofit or for-profit groups, especially those serving the community development needs of low and moderate income people, the disabled, minorities or the elderly are encouraged to participate in the implementation of Denton's Community Development programs. Interested groups are encouraged to attend public hearings. (vi) The participating jurisdiction may limit the beneficiaries or give preferences to a particular segment of the low-income population only if described in the action plan. 53 OMB Control No: 2506-0117 (exp. 07/31/2015) H W m Q W C� G Q 0 CL co r -I r -I O N O lD O O lD W to Ln N O O n 'a al I- O O tD O 3 lD lD 00 O c -I i = LL �/} �/} c -I c -I m } 00 00 O O lD Mc7 '" nn m 0 0 m m L1 L 00 Ln I- (T N m V LL O r- Lo LoD 00 a -i c -I -tn N L} L} c -I L} lD Lo L} 14 O 00 O O O O O 00 O pp a+ Ln m O Ln O O O m N C rn m O rn O O O N -a c 0 m rn m 0 Lo m � a L1nn tn r1 r1 m -tn m r1 N LL c -I N O O al I- O n O n O O O O O N c -I L} L} I- al L} O L} N L} O O L} O N N tT ` tT tT O O O Ln Ln Ln m N 00 Ln N 00 c -I Ln I�t rn r� O 00 Ln m Ln N ^ O rn 00 Lo c -I 0 0 r- 0 0 Lr) N O lD O lD O m O Cl N O tD O 00 N 00 00 Ln Lf) Ol I- Lf) Lf) Lf) Ol m r1 r -I r -I �l �l rn O 00 (T O n O O N Lr Cl O c I O Ln Qi O 00 Ln Qi O Ln N m O 00 O c -I L} Ln L} c -I Ln tT O Rl 000 O n O N O Il O O I- n n 00 O O L} c -I to c -I Rl Ln Ln c -I c -I -tn 00 O O N I� O O CF) n O N if c -I cl -,t Lj: O N I- c -I Ol 00 00 N O c -I c -I Ln to N to c -I to L} L} Ln L} c -I N c -I c -I L} L} Ln Ln c -I c c c c +J +J +J +J +J a) a) a) a) a a a a a E E E E v v v v v CL a a a O O O O c c c c c v v v v O O O O O > > > > lJ lJ lJ lJ lJ v v v v ca ca ca ca ca p p p p v v v v v U U U U U O O OO 7 7 7 7 O 06 06 06 06 06 a a a E E E E a a (n E E E E v v v v v Z O O O O O Z Z Z v v v v Z Z a a a a a H v +J J ++ U CL U a1 d a1 O� to U U Q a x o i a +' a) a) +, 00 v a E onv p O U 14 O U a E � E m c o O E � a a v o 14 °A0 0 m o v O > E E a U 0p" O = N O O O N 00 O O d > i O O i C +.+ U O E a o E o E + ^ v o v °C O ao o a v c a° ao o oc = E '^ � O >= O U o> E Q U cn a a a a cn oN o a u Q a, E >, O o 00 O m ° O O ca +° v v Z } O c E E p c 0 �y U Q cc_ C c� C O uU LL = _ = LL U V LZ City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-687, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the purchase of liquid caustic soda for City of Denton Water Treatment facilities as awarded by the Buy Board Cooperative Purchasing Network Contract 4 526-17; providing for the expenditure of funds therefor; and providing an effective date (File 6458- awarded to Petra Chemical Company in the one year not -to -exceed amount of $260,000). The Public Utilities Board recommends approval (7-0). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI EXHIBIT 1 City of Denton AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Mario Canizares DATE: June 6, 2017 SUBJECT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the purchase of caustic soda for City of Denton Water Treatment facilities as awarded by the Buy Board Cooperative Purchasing Network Contract# 526-17; providing for the expenditure of funds therefor; and providing an effective date (File 6458- awarded to Petra Chemical Company, in the one year not -to -exceed amount of $260,000). The Public Utilities Board recommends approval (7-0). FILE INFORMATION Contract# 5725 for Water Treatment Chemicals was originally awarded by line item to multiple vendors on April 21, 2015 (Exhibit 1). During the contract period, Item45, liquid caustic soda, has experienced a dramatic increase in demand and exportation. As a result, in March 2017, the contracted vendor TDC, LLC, submitted a thirty-four (34%) price increase for the remaining year of their contract. State of Texas Local Government Code 252.048, specifies that change orders to the original contract price may not be increased by more than twenty-five (25%) of the original contract price. Therefore, staff has elected to obtain alternative pricing for the last year of this contract. Staff obtained three quotes for the remaining contract period which ends April 21, 2018. A pricing comparison sheet is attached (Exhibit 2). Staff is recommending award to the lowest price quote which is provided by Petra Chemical Company through Buy Board Cooperative Purchasing Network Contract# 526-17. Pricing obtained through the Buy Board Cooperative Purchasing Network has been competitively bid and meets the statutory requirements of Texas Local Government Code 271.102. A new Request for Proposal for all of the water treatment chemicals will be issued in early 2018 to ensure that a new three (3) year contract is awarded at the time of the current contract expiration. PRIOR ACTION / REVIEW (COUNCIL, BOARDS, COMMISSIONS) On May 22, 2017, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award a contract for the purchase of liquid caustic soda to Petra Chemical Company in the one year not - to -exceed amount of $260,000. EXHIBIT 1 PRINCIPAL PLACE OF BUSINESS Petra Chemical Company Dallas, TX ESTIMATED SCHEDULE OF PROJECT Orders for the liquid caustic soda will be processed within forty-eight hours of receipt of the purchase order. FISCAL INFORMATION Funding for water treatment chemicals is budgeted in the Water Production Division's Operating Budget account number 630100.6334. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Choose an item. Related Goal: Choose an item. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Price Comparison Exhibit 3: Buy Board Contract Exhibit 4: PUB Minutes Exhibit 5: Ordinance Respectfully submitted: Galen Gillum, 349-7656 Director of Capital Projects For information concerning this acquisition, contact: Randy Markham at 349-7526. EXHIBIT Petra rhem�ca1compmny May 5, 2017 Robyn Forsyth Buyer City ofDenton Materials Management 9O18Texas St. Denton, TX762U9 In Re: Buy Board Contract Number 526-17 Dear Ms. Forsyth: Petra Chemical Company agrees toprovide Liquid Caustic Soda (50% Solution, Diaphragm Grade) in the amount of approximately 1,000,000 lbs. at the following price: Deliveries of approximately 46,000 lbs. @ $0.2533 per dry lb. = $11,651-80 Total Contract Amount ofapproximately I,OOO,DOOdry lbs. @ $0.2533 = $253300 Orders will bedelivered to: Lake Lewisville VVTP 17U18Spence Road Denton, TX7620S Cliff Musgrave President Petra 4-352-190D poas.nU 274-350,6|5� Lake Ray Roberts WTP 94O1Lake Ray Roberts Dam Rd Aubrey TX 76227 P 0. Box 400 Austin, TX 78767-0400 800,695. 2919 / 512.467.0222 / Fax: 800.211.5454 bayboard.sorra January 25, 2017 Sent Via E-mail: cmusgrave@petrachem.com Cliff Musgrave Petra Chemical Co. 2929 Storey Lane Dallas, TX 75220 Re: Notice of The Local Government Purchasing Cooperative Award Proposal Name and Number: Water Treatment Chemicals and Pipe Bursting Equipment, No 526-17 Congratulations, The Local Government Purchasing Cooperative (Cooperative) has awarded your company a BuyBoard® contract based on the above -referenced Proposal. The contract is effective 4/1/2017 through 3/31/2018, with two possible one-year renewals. The contract documents are those identified in Section 3 of the General Terms and Conditions of the specifications. To view the items your company has been awarded, please review the proposal tabulation No. 526-17 on the following web -site: www.buyboard.com/vendor. Only items marked as awarded to your company can be sold through the BuyBoard contract. In addition, on this website you will find the membership list which will provide you with the names of all entities with membership in our purchasing cooperative. Enclosed with this letter you will find the following documents: ■ Vendor Quick Reference Sheet ■ Electronic Catalog Format Instructions ■ Vendor Billing Procedures You are advised that receipt of a purchase order directly from a Cooperative member is not within the guidelines of the Cooperative. Accepting purchase orders directly from Cooperative members may result in a violation of the State of Texas competitive bid statute and termination of this Cooperative BuyBoard contract. Therefore, all purchase orders must be processed through the BuyBoard in order to comply. Please forward by fax (1-800- 211-5454) any order received directly from a Cooperative member. If you inadvertently process a purchase order sent directly to you by a Cooperative member, please fax the order to the above number and note it as RECORD ONLY to prevent duplication. Per proposal specifications, awarded vendors will have 30 days or sooner to submit their electronic catalog including pricing. If the electronic data is not provided within 30 days or sooner of notice of award, we reserve the right to inactivate any company's award information from the BuyBoard until such time the electronic data is received. On behalf of the Texas Association of School Boards, we appreciate your interest in the Cooperative and we are looking forward to your participation in the program. If you have any questions, please contact BuyBoard Procurement Staff at 800-695-2919. Sincerely, Arturo Salinas BuyBoard Procurement Director v.12.15 wr Tit The Lo�°zad G6C ver(PIne(lt Purctrasdrrg Cooperative o ed dofs°ed Pay tare Texas &,zci�aPrrarr eP 5c,�cel Rearms, Texas Municipal Ceaq aa, Texas Association of CcarrtPes, and'Oe Tems Association aPSrP'aoaf Arrrrrra'siratc rs. EXHIBIT 3 January 25, 2017 Sent Via E-mail: cmusgrave@petrachem.com Cliff Musgrave Petra Chemical Co. 2929 Storey Lane Dallas, TX 75220 Re: Notice of National Purchasing Cooperative Piggy -Back Award Proposal Name and Number: Water Treatment Chemicals and Pipe Bursting Equipment, Proposal No. 526-17 Congratulations, The National Purchasing Cooperative (National Cooperative) has awarded your company a BuyBoard® contract based on the above -referenced Proposal. As provided for in the Proposal and your National Purchasing Cooperative Vendor Award Agreement, you are authorized to sell the goods and services awarded under the Proposal to National Cooperative members in states other than Texas through the BuyBoard. The contract is effective 4/1/2017 through 3/31/2018, with two possible one-year renewals. The National Cooperative membership list is available at our website www.buyboard.com/vendor. The list identifies the current members that may purchase awarded goods and services under your National Cooperative BuyBoard contract. You are advised that receipt of a purchase order directly from a National Cooperative member is not within BuyBoard guidelines. Accepting purchase orders directly from Cooperative members may result in a violation of applicable competitive procurement law and termination of this National Cooperative BuyBoard contract. Therefore, all purchase orders from National Cooperative members must be processed through the BuyBoard. Please forward by fax (1-800-211-5454) any order received directly from a National Cooperative member. If you inadvertently process a purchase order sent directly to you by a National Cooperative member, please fax the order to the above number and note it as RECORD ONLY to prevent duplication. Per proposal specifications, awarded vendors will have 30 days or sooner to submit their electronic catalog including pricing. If the electronic data is not provided within 30 days or sooner of notice of award, we reserve the right to inactivate any company's award information from the BuyBoard until such time the electronic data is received. On behalf of the National Cooperative, we are looking forward to your participation in the program. If you have any questions, please contact BuyBoard Procurement Staff at 800-695-2919. Sincerely, BuyBoard Procurement Director x.12.15 (1YD7 00 !r��11 11111uw'1'w+ 214 FSG?'. Box 400 Austin, Texas 78767-0400 ._., 1 2 3 Monday, May 22, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 EXHIBIT 4 DRAFT MINUTES PUBLIC UTILITIES BOARD 9:00a.m. City Council Work Session Room 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, May 22, 2017 at 9:00a.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Susan Parker, Barbara Russell, Charles Jackson, Brendan Carroll, Allen Bishop and Lilia Bynum Ex Officio Members: Todd Hileman, CM and Jon Fortune, ACM OPEN MEETING CONSENT AGENDA A. PUB17-113 - Consider recommending adoption of an ordinance awarding a contract under the Buy Board program for the purchase of Liquid Caustic Soda for the Water Production Plants, City of Denton as awarded by the Texas Association of School Boards (TASB) Purchasing Cooperative Buy Board Contract 4 526-17; providing for the expenditure of funds therefor; and providing an effective date (File 6458- awarded to Petra Chemical, LLC, in the annual not to exceed amount of $260,000 for a one year not -to -exceed amount of $260,000). Board Member Bynum motioned to approve item (A). There was a second by Board Member Jackson. Vote 7-0 approved. Adjournment 9:18 a.m. EXHIBIT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT FOR THE PURCHASE OF CAUSTIC SODA FOR CITY OF DENTON WATER TREATMENT FACILITIES AS AWARDED BY THE BUY BOARD COOPERATIVE PURCHASING NETWORK CONTRACT# 526-17; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE NO. 6458 -AWARDED TO PETRA CHEMICAL COMPANY, IN THE ONE YEAR NOT -TO -EXCEED AMOUNT OF $260,000). 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 6458 Petra Chemical Company $260,000 (the "Proposal") 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 EXHIBIT 5 which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, and standards contained in the Proposal submitted to the Buy Board Cooperative Purchasing Network, and related documents herein approved and accepted. 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 No. 6458 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 , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY LIDA-14 APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN File #: ID 17-693, Version: 1 Legislation Text AGENDA CAPTION Consider adoption of an ordinance approving a temporary license agreement between the City of Denton and Jagoe-Public Company for temporary access and use of a 2 acre tract of land situated in the 3800 block of F.M. Highway 1830 (Country Club Road), authorizing the City Manager to execute the agreement; and providing an effective date. (Temporary contractor office and staging area for FM Hwy. 1830 shoulder widening & base repair TxDOT project) City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects CM/ DCM/ ACM: Mario Canizares DATE: June 6, 2017 SUBJECT Consider adoption of an ordinance approving a temporary license agreement between the City of Denton and Jagoe-Public Company for temporary access and use of a 2 acre tract of land situated in the 3800 block of F.M. Highway 1830 (Country Club Road), authorizing the City Manager to execute the agreement; and providing an effective date. (Temporary contractor office and staging area for FM Hwy. 1830 shoulder widening & base repair TxDOT project) BACKGROUND The City acquired five (5) land tracts along F.M. Highway 1830 (Country Club Road) in July 2014, as a part of the Hickory Creek Sewershed Detention Facility project. The tracts acquired totaled 101.27 acres. The Detention Facility project requires the near term use of the 66.44 acres situated west of the Kansas City Southern Railway corridor, leaving 34.83 acres east of the railroad, along the Country Club Road frontage, for longer term programming outlook and/or disposal as "excess property". Jagoe-Public Company has been awarded the Texas CCSJ: 1785-01-032, constituting shoulder widening, 377, south 5.5 miles to FM Highway 407. Dept. of Transportation Highway FM 1830 project base repair and culvert widening from US Highway Jagoe-Public Company has requested that the City of Denton permit them to temporarily use a designated 2 acre tract within the City's 34.83 acre property tract, for their construction operations related the road widening initiative. Present zoning for the contemplated 2 acre License Area is Neighborhood Residential (NR -2), under which Denton Development Code Subchapter 12 does allow for Temporary Uses (35.12.9.E.6 — Field or Construction Office). A Temporary Use Permit will be required. OPTIONS 1. Approve proposed ordinance 2. Decline to approve proposed ordinance 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED SCHEDULE OF PROJECT Project mobilization for Jagoe-Public Company anticipated to begin July 2017. Project completion estimated to be between 12-18 months. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION The rental rate for the use of the License Area has been determined by employing a methodology land appraisers use when determining compensation to landowners when the City requires the use of temporary construction workspace area upon private property for City projects. A staff valuation has been calculated as follows: 2 acre tract (87,120 square feet) x $50,000/acre (observed nominal 2017 area pricing for single family residential development tracts) x 8% (Denton area capitalization rate derived from recent land appraisals on hand for the US 377 Utility Relocations project) = $8,000 annual rental rate. A provision had been included in the Temporary License Agreement, upon election by Jagoe- Public, to provide for a six month extension to the term of the agreement, in concert with an additional payment of $4,000, should the road project be prolonged. 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: 1.6 Collaborate with local, regional, state, and federal partners EXHIBITS 1. Agenda Information Sheet 2. Location Map 3. Site Map 4. Ordinance Respectfully submitted: Galen Gillum Director of Capital Projects Prepared by: Paul Williamson Real Estate Manager SCRIPTURE Location Map J HICKORY U Downtown Denton EAG LE w Q m w z z O m w J Q w HOBSON m J U H z D O O� O� Sr:d nlric; EXHIBIT 2 attachment to AIS EXHIBIT 3 attachment to AIS N Licensed Premises Site Map - 2.0 acre tract WE 77--s City of Denton, Texas 05-31-2017 EXHIBIT 4 attachment to AIS S:\Legal\Our Documents\Ordinances\17\Jagoe FM 1830 Temporary License Agreement Ordinance.doc ORDINANCE NO. AN ORDINANCE APPROVING ATEMPORARY LICENSE CITY OFDENTON AND JAGOE-PUBLIC COMPANY FOR TEMPORARY ACCESS AND USE OF A 2 ACRE 'TRACT' OF LAND SITUATED IN THE 3800 BLOCK OF F.M. I-IIGIIWAY 1830 (COUNTRY CLUB ROAD), AUTHORIZING THE CITY MANAGER TO E,XECUTE THE AGRI.."EMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Jagoe-Public Company has been awarded the Texas Dept. of Transportation Highway IM 1830 project CCSJ: 1785-01-032, constituting shoulder widening, base repair and culvert widening from US Highway 377, south 5.5 miles to FM Highway 407 (The "Project"); and WHEREAS, Jagoe-Public Company has requested that the City of Denton permit temporary use of a 2 acre tract upon City of Denton owned lands for its construction operations related to the Project; and WHEREAS, the City Council finds the transaction contemplated by the Agreement is in the best interest of the citizens of the City of Denton; NOW, THEREFORE; THh COUNCII, OF THE; CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are expressly incorporated herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Temporary License Agreement, for and on behalf of the City of Denton, Texas, said Agreement being attached hereto and incorporated herein as Exhibit "A". SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the — -- day of 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: S:\Legal\Our Documents\Ordinances\17\Jagoe FIVI 1830 Temporary License Agreement Ordinance.doc APPROVED AS TO LEGAL FORM: AARON f,EAI..,, INTERIM CITY ATTORNEY BY: TEMPORARY LICENSE AGREEMENT This Temporary License Agreement (the "Agreement"), is made this day of 2017, between the City of Denton, Texas, a Texas home rule municipal corporation (the "City") and Jagoe-Public Company, aTexas corporation ("Jagoe"). WHEREAS, the City owns certain real property located in the B.13.13 & C.R.R. Co. Survey, Abstract Number 196, within the City of Denton, Texas, specifically along the 3800 block of 1,.M. Highway 1830, aka Country Club Road, (the "City Owned Lands"); WHEREAS, Jagoe has been awarded the Texas Dept. of Transportation Highway F.M. 1830 project CCSJ: 1785-01-032, constituting shoulder widening, base repair and culvert widening from US Highway 377, south 5.5 miles to FM Highway 407 (the "Project"); WHI-.,'REAS, it is the desire of Jagoe to occupy and use a two (2) acre portion of the City Owned Lands in connection with its construction activities related to the Project; WHEREAS, the City is amenable to granting a temporary license over the lands shown as the "Licensed Premises", depicted on Exhibit "A" attached hereto, to conduct certain activities, in accordance with the terms, provisions and conditions set forth herein. ARTICLE 1. LICENSE Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and for good and valuable consideration as set forth herein, the City hereby grants to Jagoe, upon the terms and conditions set forth in this Agreement, a temporary license on and over the Licensed Premises, for the sole purposes of (i) clearing, grading and leveling; (ii) placement of rock and/or gravel; (iii) ingress and egress of equipment and machinery; (iv) storage and staging of materials, equipment and machinery; (v) fencing; (vi) lighting; and (vii) placement of construction trailers, all in connection with activities related to the Project. 1 Section 1.02. Use. Any use of the Licensed Premises not expressly permitted by this Article I is expressly prohibited. Section 1.03. Term, The effective date of this Agreement is July 1, 2017 (the "Effective Date"). This Agreement and the license granted herein shall expire upon the earlier to occur of (i) the completion of the Project; and (ii) one (1) year from the effective date of this Agreement. Notwithstanding the foregoing, the term of the Agreement may be extended an additional six (6) months, upon election by Jagoe as further defined herein. If Jagoe elects to extend the term of the Agreement for an aggregate period of eighteen (18) months, then the license granted herein shall expire upon the earlier to occur of (i) the completion of the Project; and (ii) eighteen (18) months from the effective date of this Agreement. Section 1.04. Restoration. Prior to the expiration of this Agreement and the license granted herein, Jagoe shall (i) remove any property, material and/or equipment of Jagoe and/or any other third party, along with all trash and debris, from the I -licensed Premises; and (ii) restore the Licensed Premises to the condition as existed at the Effective Date hereof. ARTICLE 11. COMPENSATION Section 2.02. Compensation. As consideration for the rights granted by this Agreement, Jagoe shall pay to the City, on or before the Effective Date, the sum of Eight Thousand Dollars and No/100 ($8,000.00). Upon election by Jagoe to extend the term of the Agreement for an aggregate period of eighteen (18) months, then Jagoe shall provide written notice to the City thirty (30) days prior to the expiration of the initial one (I) year term, along with additional payment of Four Thousand Dollars and No/100 ($4,000,00). In any event, there shall be no refund of any compensation payment(s) made. N ARTICLE, 111. INSURANCE & INDEMNITY Section 3.01. Insurance. Jagoe shall procure and carry the insurance coverages, and upon the terms, as prescribed in Exhibit "B", attached hereto and made a part hereof. Section 3.02. Indemnity. Jagoe shall indemnify, defend, and hold harmless, to the fullest extent permitted by law, the City, and City's respective officers, employees, elected officials and/or agents from and against any and all losses, damages, claims or liabilities, of any kind or nature, which arise directly or indirectly, or are related to, in any way, manner or form, the activities contemplated hereunder, occupation of the Licensed Premises by Jagoe or any party acting under the authority of Jagoe, or the omission of the activities contemplated hereunder. Jagoe further covenants and agrees to defend any suits or administrative proceedings brought against the City and/or the City's respective officers, employees, elected officials and/or agents on account of any such claim, as directed by the City, and, without limiting the general indemnity provided herein, to pay or discharge the full amount or obligation of any such claim incurred by, accruing to, or imposed on the City, or the City's respective officers, employees, elected officials and/or agents, as applicable, resulting from any such suits, claims, and/or administrative proceedings or any matters resulting from the settlement or resolution of said suits, claims, and/or administrative proceedings. In addition, Jagoe shall pay to the City, the City's respective officers, employees, elected officials and/or agents, as applicable, reasonable and necessary attorneys' fees incurred by such parties in enforcing Jagoe's indemnity in this Section 3.02. THE CITY, AND ITS RI-`,SPEC-.HVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND JAGOE, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEFIS, 1:-,.LEC'I-ED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY AND ALI.., LOSSES, DAMAGES, CLAIMS OR LIA1311,1TIES, ON ANY JJJEORY OF LEGAL LIABILITY, NOW EXISTING OR EXISTING IN THE FUTURE, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF THE CITY, RELATED TO THE ACTIVITIES CONTEMPLATED BY THIS AGREEMI: NTAND/OR THE OCCUPATION OFTHE LICF'1LASED PREMISES BY JAGOE, 3 ITS AGENTS, CONTRACTORS OR. ANY PARTY ACTING UNDER TI -11-1 AUTHORITY 01, JAGOE". The indemnity and release provided herein shall survive the termination or expiration of this Agreement. ARTICLE IV. EVENTS OF DEFAUUVREMEDIES Section 4.01 (a).City Default/Jagoe Remedies. In the event the City shall default in the performance of any term or provision of this Agreement for any reason other than failure by Jagoe to perform hereunder, Jagoe may, if said default shall be continuing after ten (10) calendar days notice of such default to the City, as its sole and exclusive remedy, either (i) terminate this Agreement; or (ii) enforce specific performance of this Agreement. (b) Jagoe Default/City Remedies. In the event Jagoe shall default in the performance of any term or provision of this Agreement for any reason other than failure by City to perform hereunder, City may, if said default shall be continuing after ten (10) calendar days notice of such default to Jagoe, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and the right to terminate this Agreement. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. ARTICLE V. MISCELLANEOUS Section 5.01. No Waiver. No failure to exercise and no delay in the exercise on the part of either party hereto of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any other right. Section 5.02. Notice, Any notice required or permitted to be given hereunder shall be given in writing and delivered by hand delivery, telephonic facsimile, or mailed certified or registered 4 mail, to the party to whom such notice or communication is directed at the address of such party as follows: Jagoe Jagoe-Public Company Attn: Bill Cheek PO Box 250 Denton, exas 76202-0250 Facsimile: (940)382-9732 Copies to: City Paul Williamson Capital Projects — Real Estate 901 -A Texas Street Denton, Texas 76209 Facsimile: (940) 349-8951 Trey Lansford, Deputy City Attorney City Attorney's Office 215 East McKinney Street Denton, Texas 76201 Facsimile: (940) 382-7923 Any such notice or other communication shall be deemed to have been given and received, on the date it is personally delivered or delivered by telephonic facsimile, or if it is mailed as aforesaid, on the third day after it is mailed. 5.03. No Assignment, This Agreement, and the license granted herein, is personal to Jagoe and may not be assigned without the express written consent of the City. Any attempt to assign this Agreement, or the license granted herein, in whole or in part, without such consent shall terminate this Agreement and the license granted herein. 5.04, City. Unless otherwise provided herein or required by law and/or local ordinance or charter, any action required or permitted to be taken herein by the City, is hereby delegated to the City Manager of the City of Denton, or his designee. 5.05. Relationship of Parties. The relationship between the City and Jagoe for purposes of this Agreement is at all times solely that of licensor and licensee, and shall not be deemed in any event, a partnership, joint venture or joint enterprise. 0 5.06. Compliance with Tp Applicable Laws. Jagoe shall comply with all applicable federal, state — and local rules, regulations, statutes, laws, orders and ordinances pertaining to, in any way, manner or form, the activities described in or contemplated by this Agreement. 5.07. Applicable Law and Venue. This Agreement is to be construed under Texas law and applicable federal law, without regard to conflict of law rules that would direct the application of laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Denton County, Texas. Vf.,,NtJE FOR ANY ACTION BROUGHT PURSUANT TO THIS AGREEMENT, OR ANY ACTiviTy CONTEMPLATED IIERE13Y, SHALL LIE ]-.,XCLUSIVELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 5.08. Partial Invalidity. Except as otherwise may be provided herein, if any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and this Agreement shall be construed as if it had not included the invalid, illegal or unenforceable provision. 5.09. Prior Agreements. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. 5.10. Amendment. No amendment, modification or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly authorized and executed by the parties. Notwithstanding the provisions of Section 5.04, above, the authority to amend this Agreement is not delegated by the City Council of the City of Denton to the City Manager. 5.11. Representations. Jagoe represents and warrants to the City (i) that it possesses the legal authority to enter into this Agreement and has taken all actions necessary to legally bind Jagoe to all terms hereof, (ii) that the party executing this Agreement on behalf of Jagoe possesses all X authority necessary to legally bind Jagoe to all terms hereof; and (iii) this Agreement is binding and enforceable upon Jagoe in accordance with the terms hereof. 5,12, License Agreement, The intent of this Agreement is to grant a license upon the terms and provisions hereof, solely during the times and solely for the purposes described herein. This Agreement shall not be construed in any way, manner or form as conveying or assigning to Jagoe any interest in real property, of any kind, nature or character, in or to the Licensed Premises. IN WITNESS Wf-IERI--',OF, the parties have executed this Agreement this _ day of Im CITY OF DENTON TODD HILEMAN, CITY MANAGER ATTEST: JENNIFI-.?R WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON INTERIM CITY ATTORNEY BY: JAGOE-PUBLIC COMPANY BY: NAME: Bill Check TITLE: Executive Vice President 7 'EXHIBIT 1 License . r.„ a N Licensed Premises Map - 2.0 acre tract W+E S City of Denton, Texas 05-31-2017 Exhibit "B" To Temporary License Agreement Jagoe shall procure and carry, at its sole cost and expense during the term of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company (or companies) authorized to transact business in the State of Texas, or through a program of self-insurance, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. Jagoe shall obtain and maintain the following insurance coverages in full force and effect during the term of this Agreement, either through a program of self-insurance, or with carriers as follows: Commercial General or F"xcess Liabili ity.(providing coverage for premises, operations, products, and completed operations, independent contractors, contractual liability, broad form property damage coverage, and where these exposures exist, explosion, collapse or underground (XCU) exposures): Per Occurrence Limit: Aggregate Limit: $1,000,000 $2,000,000 Business Automobile Liability (providing coverage for owned, non -owned and hired automobiles): Per Occurrence Limit $ 500,000 Aggregate Limit: $1,000,000 Statutory Workers' Comoensation Insurance: Workers' compensation insurance coverage in accordance with the statutory requirements of the State of Texas. Environmental Liability Per Occurrence Limit: Aggregate Limit: $1,000,000 $2,000,000 The City shall be listed as an Additional Insured with respect to the Commercial General Liability and Business Automobile Liability insurance policies, and shall be granted a waiver of subrogation under both policies, as well as the Workers' Compensation coverage. These requirements shall not apply should Jagoe choose to sell' -insure these risks. Jagoe will provide a Certificate of Insurance ("Certificate") on or before the Effective Date of this Agreement to the City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy, as applicable, shall be included in the Certificate. All insurance carriers must be admitted to do business in the State of Texas and have an AM Best's Rating of A -VII or better. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com I..NTO File #: ID 17-700, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of May 23 and 30, 2017. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI CITY OF DENTON CITY COUNCIL MINUTES May 23, 2017 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, May 23, 2017 at 1:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Pro Tem Bagheri, Council Member Briggs, Council Member Wazny, Council Member Gregory, Council Member Ryan, and Mayor Watts. ABSENT: Council Member Hudspeth Citizen Comments on Consent Agenda Items Willie Hudspeth spoke on Consent Items D, E, F, G, and H. Council Member Hudspeth arrived at the meeting. 2. Requests for clarification of agenda items listed on the agenda for May 23, 2017. Staff responded to Council requests for clarification on the following items: Council Member Gregory - Consent Item G, pull Consent Agenda Item H for individual consideration and have a staff presentation Council Member Ryan — Consent Agenda Item C Council Member Hudspeth — Consent Agenda Item C Mayor Watts — Consent Agenda Item D Council Member Ryan — Individual Consideration Item 6A Work Session Reports A. ID 17-567 Receive a funding recommendation report from the Community Development Advisory Committee (CDAC) and the Human Services Advisory Committee (HSAC). Hold a discussion and give staff direction regarding these activities as they are proposed in the 2017 Action Plan for Housing and Community Development. Barbara Ross, Community Development Manager, stated that the Chairs of the two committees would be presenting recommendations for program funding. These were part of the 2017 Action Plan which was an application to HUD for Block Grant funds and Home Investment Partnership Grants. A problem with the allocation of the funding was that staff had had not yet received an exact allocation from HUD. The current funding was included in the documents and if there was a small decrease or increase in the final allocation, the numbers would be adjusted by that amount. Staff would notify Council in an Informal Staff Report about the changes and if Council had concerns, staff would provide more specific information. Council discussed changes in a plan/flexibility if there was a need to change plans with individual organizations. Larry Varnes, Chair - Community Development Advisory Committee, presented the recommendation of the Committee for funding organizations. The amount of available funding City of Denton City Council Minutes May 23, 2017 Page 2 was the same as last year but did not cover all of the funding requests. He reviewed the process of determining funding for the various organizations. Council discussed the Homebuyer Assistance Program in terms of housing in the allocated price range. Sheryl English, Chair - Human Services Advisory Committee, presented the recommendations of the Committee for funding allocations. She reviewed the process the Committee used to allocate the funding. Council discussed the City of Denton Parks and Recreation Program which provided scholarships for children to attend programs at no charge; how the funding was allocated in the budget process; and HMIS funding organization to receive the funds. B. ID 17-491 Receive a report, hold a discussion and give staff direction regarding the use of the Prescott property at US 380 and Virginia Street, which is currently owned by Denton Municipal Electric. Mark Nelson, Director of Transportation, presented the background information on the proposal. He reviewed the location of the property, long-term planning alternative uses for the track and was requesting Council direction on potential options. Public safety benefits, a possible north Denton trail in the area, and a DCTA proposal were presented. He reviewed four scenarios for use of the property. Council discussion centered on the amount of flood plain on the property; preserving a portion of the property for public safety needs and for citizen usage for trails; a support for Scenario 2; consider a Scenario 5 which would have all of the proposals; concerns for the location of a Fire Station in the area; and concern over the size of the proposed DCTA parking lot. Consensus of Council to proceed with Scenario 4 which was to hold on to the property as it currently was for future consideration. C. ID 17-607 Receive a report, hold a discussion, and give staff direction regarding park turf maintenance and reforestation of parks. Emerson Vorel, Director of Parks and Recreation, presented information on parks mowing and reforestation practices. There were four separate classes for mowing which were reviewed. Council discussed integrating the mowing with drainage areas; concerns about mowing during the bird/butterfly migration period; and analysis on contract mowing versus staff mowing. Consensus of Council was to consider moving some of the mowing classes to Class B and when mowing in Class C don't interfere with bird/butterfly migrations. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific item listed below under the Closed Meeting section of this agenda. City of Denton City Council Minutes May 23, 2017 Page 3 1. Closed Meeting: A. ID 17-649 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 out of the Jeremiah Fisher Survey, Abstract No. 421 and the Stephen Hembrie Survey, Abstract No. 643, Denton County, Texas, and generally located in the 3400 and 3900 blocks of Teasley Lane, Denton, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (FM 2181 Utility Relocations Project - Meredith - Parcel 17 & VMY Properties, LLC - Parcel 37) 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 Troop 755 of the Church of Jesus Christ of the Latter Day Saints lead the Council and members of the audience in reciting the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. ID 17-652 Mental Health Awareness Month Mayor Watts presented the proclamation for Mental Health Awareness Month. 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. 1. ID 17-647 B.C. Groves regarding the Police Department's refusal to take her complaint. Ms. Groves was not present at the meeting. C. Additional Citizen Reports 1. Marc Moffitt commended Officer Jackson on her handling of an accident he was involved with. He reported on the condition of the police car that responded to the scene. He City of Denton City Council Minutes May 23, 2017 Page 4 recommended that during the budget process for next year more funding be allocated for public safety and public infrastructure. These two items should be a priority in the budget. 2. Robert Donnelly spoke on the Mobility Plan in terms of Mayhill Road. He presented the history of the realignment of the Mayhill and how it affected his property. 3. Willie Hudspeth questioned the Council regarding the number of African American firefighters and why there was no football/soccer field in SE Denton when the money was already appropriated. 4. CONSENT AGENDA Council Member Gregory motioned, Mayor Pro Tem Bagheri seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Item H which was considered separately. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. Resolution R2017-020 A. ID 17-604 Consider approval of a resolution of the City Council of the City of Denton nominating Mayday Manufacturing Co. to the Office of the Governor, Economic Development and Tourism ("OOGEDT") through the Economic Development Bank ("the Bank") as an Enterprise Project ("Project"); and providing an effective date. Ordinance No. 2017-149 B. ID 17-617 Consider adoption of an ordinance of the City of Denton Authorizing an agreement between the City of Denton, Texas and Denton Supportive Housing Pilot, at United Way of Denton County, Inc., for the purpose of care packages; authorizing the expenditure of funds; and providing for an effective date. ($200) Ordinance No. 2017-150 C. ID 17-627 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 Komatsu equipment repair services for the City of Denton Fleet Services department; and providing an effective date (File 6437 - awarded to Kirby -Smith Machinery in the three (3) year not -to -exceed amount of $380,000). Ordinance No. 2017-151 D. ID 17-629 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the rental of vans for the City of Denton Parks programs; providing for the expenditure of funds therefor; and providing an effective date (RFP 6433 -awarded to CAPPS Rent A Car, Inc. in the three (3) year not -to -exceed amount of $165,000). City of Denton City Council Minutes May 23, 2017 Page 5 Ordinance No. 2017-152 E. ID 17-630 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for pavement markers installation for the City of Denton Traffic Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 6358 -awarded to Striping Technology, LP in the three (3) year not -to -exceed amount of $1,500,000). Ordinance No. 2017-153 F. ID 17-631 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility transformer pads for Denton Municipal Electric to be stocked in the City of Denton Distribution Center; providing for the expenditure of funds therefor; and providing an effective date (RFP 6403 - awarded to Anixter, Inc. in the three (3) year not -to -exceed amount of $230,000). Ordinance No. 2017-154 G. ID 17-638 Consider adoption of an ordinance of the City of Denton, Texas, authorizing the approval of a Sixth Amendment to a contract with Oriental Building Services, Inc., for the supply of janitorial services, along with Amendments 1-5, which was originally approved on November 19, 2013, in the amount of $1,743,714, in order to extend the term of the contract to September 30, 2017 and provide an additional expenditure of funds for that purpose, pursuant to the change order provisions of the Tex. Loc. Gov't Code Sec. 252.048; and providing an effective date. (RFP 5317 -providing for an additional expenditure amount of $250,000, for a total contract award of $1,993,714). Ordinance No. 2017-155 L ID 17-648 Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ("City") to execute, for and on behalf of the City, an easement purchase agreement ("Agreement"), as attached hereto and made a part hereof as Exhibit "A," for the purchase price of One Hundred Sixty -Three Thousand Six Hundred Twenty -Four Dollars and No Cents ($163,624.00), and other consideration, as prescribed in the Agreement by and between the City and VMY Properties, LLC providing for the granting to the City of a water and sanitary sewer easement, encumbering a 0.1279 acre tract of land being more particularly described in the Water and Sanitary Sewer Easement, being attached to and made a part of the Agreement, said easement tract being in the Stephen Hembrie Survey, Abstract No. 643, generally located in the 3900 block of Teasley Lane; authorizing the expenditure of funds, providing a savings clause; and providing an effective date. (FM 2181 Utility Relocations Project - Parcel 37) The minutes listed below were approved. J. ID 17-662 Consider approval of the minutes of May 2, 9, and 16, 2017. The item pulled for separate consideration was considered. City of Denton City Council Minutes May 23, 2017 Page 6 Resolution No. R2017-021 H. ID 17-645 Consider approval of a resolution by the City of Denton, Texas ("City"), approving a change in the rates of Atmos Energy Corporation, Mid -Tex Division ("Atmos") as a result of a settlement between Atmos and the Atmos Texas Municipalities ("ATM") under the rate review mechanism; finding the rates set by the attached tariffs to be just and reasonable; finding that the meeting complied with the Open Meetings Act; declaring an effective date; and requiring delivery of the resolution to the company and legal counsel; and providing an effective date. Larry Collister, Deputy City Attorney, provided background information on the resolution including information on the rate review mechanism for Atmos Energy Corporation. Atmos had applied for a proposed system -wide base -rate increase. The options for the proposed base -rate increase were reviewed as well as Denton's options as a member on its own. The likely outcome and financial impact of an appeal for Denton ratepayers was noted. Staff was recommending acceptance of the proposed base -rate increase of $48 million and approve the resolution as presented. Council discussed the number of municipalities involved in the ATM; the fact that the cost of appealing or not appealing would still impact the rate payers; the rate increase did not involve the rate of the gas -it involved infrastructure and rate of growth in the service area; and how often Atmos could propose a rate increase. A Speaker Card was submitted by Deb Armintor who urged Council to vote no on the proposed rate increase. Council continued discussion on the amount of rate payer increase monthly and/or yearly; when the next series of rate reviews would begin as this one was the last of this agreement; who were the members of the coalition and how did they come into the bargaining unit; the fact that it appeared that there was not a better deal than the $48 million as on appeal the City would have to pay legal fees and the Railroad Commission did not favor cities; and moving forward form a stronger coalition and work with the consultants in Austin for more favorable legislation. Additionally, Council questioned future negotiations; whether Denton could settle later with Atmos if the increase were denied at this meeting; have outside counsel share their negotiation process; and change the negotiation process in the future to better serve Denton rate payers. Council Member Gregory motioned, Council Member Ryan seconded to adopt the ordinance. On roll call vote, Council Member Wazny "aye", Council Member Gregory "aye", Council Member Ryan "aye", and Mayor Watts "aye". Mayor Pro Tem Bagheri "nay", Council Member Briggs "nay", and Council Member Hudspeth "nay". Motion carried with a 4-3 vote. 5. ITEMS FOR INDIVIDUAL CONSIDERATION - CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS Ordinance No. 2017-156 A. ID 17-635 Consider adoption of an ordinance of the City of Denton ("City") finding that a public use and necessity exists to acquire fee simple title to a 1.656 acre tract City of Denton City Council Minutes May 23, 2017 Page 7 of land situated in the Alexander Hill Survey, Abstract No. 623, City of Denton, Denton County, Texas ("Property Interests"), for the expansion, construction, maintenance, operation, and improvement of electrical transmission lines, facilities and structures, including substations; authorizing the City to acquire the Property Interests by either agreement or through the use of the power of eminent domain; authorizing the use of power of eminent domain to condemn the Property Interests if an agreement cannot be reached; authorizing the expenditure of funds; making findings; providing a savings clause and an effective date. [Eagle Substation] Phil Williams, General Manager -DME, provided background information on the property needed for the Eagle Substation. He reviewed an Executive Summary detailing the need for the substation. He presented information on substation spacing, site options, and the history of public meetings on the proposed sites. Willie Hudspeth submitted a Speaker Card and spoke in opposition. Jonathan Littmann spoke in opposition. Council discussed that this location would be for the gas insulated substation and would very different from a regular substation. Williams provided information on the property location, size and shape of the property and as the motion was being read, Williams read the legal description of the property into the record. Council Member Gregory motioned: "I move that the City of Denton, after having made the offers required by State law, use the power of eminent domain, if needed, to acquire fee simple to the surface estate, of a 1.656 acre tract generally located at the southeast corner of Eagle Drive and Bernard Street, and being situated in the Alexander Hill Survey, Abstract No. 623, in the City of 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, construction, maintenance, operation, and improvement of electric transmission lines, facilities, and structures, including substations, to serve the public and citizens of the City of Denton, Texas." Council Member Wazny seconded the motion. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. 6. ITEMS FOR INDIVIDUAL CONSIDERATION Ordinance No. 2017-157 A. A16-00044 Conduct the second of two readings and consider adoption of an ordinance of the City of Denton annexing approximately 4.7 acre of land, generally located north of Ryan Road, west of FM 2181 (Teasley Lane) and Lake Forest Good Samaritan Village, and east of Country Club Road; providing for a correction to the city map to include the annexed lands; providing for a savings clause and an effective date. City of Denton City Council Minutes May 23, 2017 Page 8 Ron Menguita, Long Range Planning Administrator, presented details on the second reading of the annexation proceeding. He reviewed the proposed site and the annexation schedule. Mayor Watts read the ordinance caption into the record, "An ordinance of the City of Denton annexing approximately 4.7 acre of land, generally located north of Ryan Road, west of FM 2181 (Teasley Lane) and Lake Forest Good Samaritan Village, and east of Country Club Road, more specifically described in Exhibit "A" and illustrated in Exhibit "B"; providing for a correction to the city map to include the annexed lands; providing for a savings clause and an effective date." Council Member Ryan motioned, Council Member Gregory seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. Ordinance No. 2017-158 B. A17-0001 Consider adoption of an ordinance of the City of Denton, Texas, setting a date, time, and place for two public hearings on the proposed annexation of certain properties generally located north of McKinney Street and west of Trinity Road by the City of Denton, Texas, authorizing and directing the City Secretary to publish notice of such public hearings. Ron Menguita, Long Range Planning Administrator, presented the information on setting the dates for public hearings for a proposed annexation. He reviewed the background information on the voluntary annexation and the annexation schedule. Council Member Wazny motioned, Council Member Briggs seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. Ordinance No. 2017-159 C. A17-0004 Consider adoption of an ordinance of the City of Denton, Texas, setting a date, time, and place for two public hearings on the proposed annexation of certain properties generally located north of Brush Creek Road and east of Fort Worth Drive by the City of Denton, Texas, authorizing and directing the City Secretary to publish notice of such public hearings. Ron Menguita, Long Range Planning Administrator, presented information on the request for annexation which would set a time, date and location for the beginning of the annexation process. He reviewed the background information on the property, proposed zoning and the annexation schedule. Council Member Wazny motioned, Council Member Briggs seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. City of Denton City Council Minutes May 23, 2017 Page 9 Ordinance No. 2017-160 D. ID 17-636 Consider adoption of an ordinance accepting competitive proposals and awarding a three (3) year contract for the supply of hot mix asphalt concrete and the lay down of the asphalt for the City of Denton Street Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 6386 -awarded to Jagoe-Public Company, in the three (3) year not -to -exceed amount of $20,000,000 for Sections A and C and The Lane Construction Corporation in the three (3) year not -to -exceed amount of $9,000,000 for Sections B and D for a three (3) year total not -to -exceed amount of $29,000,000). Galen Gillum, Interim Director of Capital Projects, provided background information on the request for hot mix asphalt concrete and the lay down of the asphalt for various city projects. He reviewed what the material was used for, the service provided, examples of streets, results achieved from the contracts, and allocation of funding. Mayor Pro Tem Bagheri motioned, Council Member Wazny seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Briggs "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Motion carried unanimously. 7. PUBLIC HEARINGS Resolution R2017-022 A. ID 17-532 Hold a public hearing and consider approval of a resolution regarding the proposed site for construction, expansion, and use of an electric power transmission line generally located in an area bounded by Bernard Street (western boundary), Eagle Drive (northern boundary), S Locust Street and W Collins St. (eastern boundary), and W Collins Street (southern boundary) lying within the City of Denton, Denton County, Texas; as part of Denton Municipal Electric's service territory. [Eagle to Locust Transmission Line] Phil Williams, General Manager -DME, provided information on the Eagle to Locust Transmission Line, He reviewed the Executive Summary consisting of problems with the current infrastructure, route alternatives and differences between the yellow and blue route. Advantages of the blue route were noted. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. Council discussed the differences between the two options; types of trees that would be removed with the different routes; differences between the current poles and the ones that would be used for this project; new technology for the substation; and the recommendation from PUB. City of Denton City Council Minutes May 23, 2017 Page 10 Council Member Gregory motioned, Council Member Ryan seconded to approve the resolution authorizing the Blue Route. On roll call vote, Mayor Pro Tem Bagheri "aye", Council Member Wazny "aye", Council Member Gregory "aye", Council Member Hudspeth "aye", Council Member Ryan "aye", and Mayor Watts "aye". Council Member Briggs "nay". Motion carried with a 6-1 vote. B. ID 17-570 Hold a public hearing inviting citizens to comment on the City of Denton's 2017 Action Plan for Housing and Community Development. The Mayor opened the public hearing. Barbara Ross, Community Development Manager, stated that the public hearing was a requirement to receive comments from the public on the Action Plan. No one spoke during the public hearing. The Mayor closed the public hearing. There was no action required on this item at this time. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Briggs requested a discussion on the controlling ordinance for EDP Board nominations as there were two non -Council members on the Board. Council Member Briggs requested a Work Session on the Mobility and Bike Plan. Council Member Briggs requested a list of employees who have left the City, reasons for leaving, their salaries at the time of leaving along with who was hired in their place and their salaries. Council Member Briggs requested a timetable for the Bolivar Street project. City of Denton City Council Minutes May 23, 2017 Page 11 Council Member Briggs requested a ratio of new versus old police vehicles and how they fit together. Council Member Ryan requested a staff report on the difference between manufactured housing verses mobile homes. Council Member Ryan requested a report on updating the code regarding weight limitations on trash receptacles. Mayor Watts requested an update on the Mobility Plan in terms of Mr. Donnelly's property. Mayor Watts requested information on the funding of a football field in SE Denton. Council Member Hudspeth requested information on a walkway to Ryan High School including a list or map of state highways within the city limits. Council Member Hudspeth requested information on what steps could be incorporated to limit the need of the officers to go back to a central location to update their reports. 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 9:02 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES May 30, 2017 After determining in Open Session that a quorum was present, the City Council convened in a Closed Meeting on Tuesday, May 30, 2017 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Briggs, Council Member Wazny, Council Member Gregory, Council Member Ryan, and Mayor Watts. ABSENT: Mayor Pro Tem Bagheri and Council Member Hudspeth. Closed Meeting: A. ID 17-705 Consultation with Attorneys - Under Texas Government Code, Section 551.071 Receive information from, consult with, deliberate, and provide direction and/or recommendations to the City's attorneys regarding (i) the City's participation in the Atmos Texas Municipalities ("ATM") group, or any other such group, as it relates to the current gas utility Rate Review Mechanism ("RRM") with Atmos Energy Corporation, Mid -Tex Division ("Atmos") or any such future gas utility rate review procedure with Atmos, (ii) Atmos' 2017 application under the RRM ("2017 RRM") seeking a system -wide base -rate increase of $57.4 million, (iii) the City's options with respect to Atmos' 2017 RRM, (iv) the status of the current RRM, and (v) how to proceed with respect to Atmos and future applications for gas utility rate increases. A public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. Following the completion of the Closed Meeting at 2:55 p.m., the City Council convened in a Special Called Meeting to consider the following items: 1. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 17-706 Reconsider the approval of a resolution of the City Council of the City of Denton, passed on May 23, 2017, approving a change in the rates of Atmos Energy Corporation, Mid -Tex Division ("Atmos") as a result of a settlement between Atmos and the Atmos Texas Municipalities ("ATM") under the rate review mechanism; finding the rates set by the attached tariffs to be just and reasonable; finding that the meeting complied with the Open Meetings Act; declaring an effective date; and requiring delivery of the resolution to the company and legal counsel; and providing an effective date. Mayor Watts stated that he had asked for the option to reconsider the resolution concerning an Atmos rate increase. He noted if IA, the motion to reconsider, passed then Council could consider 113. If IA failed, then resolution from last week would stand. Council Member Gregory stated that Council could vote to reconsider and after that could vote again for same resolution. City of Denton City Council Minutes May 30, 2017 Page 2 Speaker Cards were submitted by: Willie Hudspeth felt that the Closed Session was not appropriate and illegal. Deb Armintor urged the Council to vote yes to reconsider. Interim City Attorney Leal stated that if Council approved the motion to reconsider, the previous action on the resolution would be reversed and Council would start over with a new resolution. He read the section of the Council's Rules of Procedure concerning reconsideration. Mayor Watts stated that he had asked for the motion to reconsider as he wanted more information relative to the issue and noted his rationale for requesting reconsideration. At this point, he had the information he needed and was not in favor of reconsideration. Council Member Gregory felt that Council made the right consideration at the last meeting. Even at best, the proposal of $32 million, if approved by the Railroad Commission, would only increase the rate by $.69 cents per month but would cost $8-$9 per month with legal fees added. That was not a win. He was willing to let the motion stand as approved last week. Council Member Briggs wanted to go on record that she nervous about the increase. She felt there needed to be a policy discussion regarding the entire process. Council Member Wazny stated that if Council questioned the process, then she would recommend a Council committee to start the process to reach out to the two different coalitions and re-evaluate which coalition would benefit the city the most and bring that information back to Council. A three member committee could be formed to help find the answers. Council Member Gregory noted that in the two coalitions there were 227 cities that ranged in size from Sanger to Fort Worth and Austin. Of those 227 cities, none had rejected the settlement to the agreement. If Denton did, it would be separate fight from Dallas and the cost would be on Denton ratepayers. It would be a bad deal for Denton. Council Member Ryan stated that he was glad for the information for reconsideration but still did not feel it should be reconsidered. He recommended that staff and the coalition work with legislators in the future. Item I died for lack of a motion from an affirmative member. Item 1B would not be considered as IA did not pass. B. ID 17-707 Consider approval of a resolution by the City of Denton, Texas ("City"), either (i) approving a change in the rates of Atmos Energy Corporation, Mid -Tex Division ("Atmos") as a result of a settlement between Atmos and the Atmos Texas Municipalities ("ATM") under the Rate Review Mechanism and finding the rates set by the attached tariffs to be just and reasonable, OR (ii) finding that the 2017 Rate Review Mechanism filing of Atmos for a rate increase of $57,400,000 is unjust and unreasonable and denying Atmos' proposed rate increase and, if desired, approving a different rate increase amount; finding that the meeting complied with the Open Meetings Act; declaring an effective date; and requiring delivery of City of Denton City Council Minutes May 30, 2017 Page 3 the resolution to the company and legal counsel; and providing an effective date. [This item to be considered only if a Motion for Reconsideration of the foregoing agenda item is approved.] This item was not considered. 2. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Gregory requested action necessary to reassign or add to the Audit Finance Committee assignment the task of utility rates review and working with other cities in the coalition. Council Member Gregory requested a Work Session on a comprehensive plan for economic development goals, objectives and specific strategies. Council Member Briggs asked for a staff report on the City's Brady List. With no further business, the meeting was adjourned at 3:20 p.m. 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 DEN'FON Legislation Text File #: ID 17-729, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the installation of a Splash Park at the City of Denton Carl G. Young Park located at 327 South Wood Street as awarded by the Buy Board Cooperative Purchasing Network Contract# 512-16; providing for the expenditure of funds therefor; and providing an effective date (File 6450 -awarded to Kraftsman Commercial Playgrounds and Water Parks, Inc. in the not -to -exceed amount of $252,093.97). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI EXHIBIT 1 City of Denton AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Mario Canizares DATE: June 6, 2017 SUBJECT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract for the installation of a Splash Park at the City of Denton Carl G. Young Park located at 327 South Wood Street as awarded by the Buy Board Cooperative Purchasing Network Contract# 512-16; providing for the expenditure of funds therefor; and providing an effective date (File 6450 -awarded to Kraftsman Commercial Playgrounds and Water Parks in the not -to -exceed amount of $252,093.97). FILE INFORMATION This contract is for purchase and installation of a spray ground/splash park at Carl G. Young Park. The Splash Park will contain spray jets and water features such as water cannons and dumping buckets. Since there will be no standing water at this location, no life guards will be required. This also allows for the park to be available for use for more hours per week than a standard pool. The Splash Park will be approximately 40 feet in diameter and will utilize reclaimed water from the park site. This will be Denton's first Splash Park amenity and will be a welcome addition to the local Denton community. In November of 2014, voters approved the sale of $200,000 of General Obligation Bonds for the purpose of funding the construction of a small/medium Splash Park. Local citizens also united together to raise donations in the amount of $10,493.80 through grass roots efforts and by means of an online Indiegogo crowd funding site to provide additional funding. There are a very limited number of manufacturers of Splash Park equipment with many of them located in Canada or Turkey. Kraftsman Commercial Playgrounds and Water Parks (Kraftsman) uses Water Odyssey brand equipment which is manufactured in the United Sates. Kraftsman provided a list of Splash Park references that included over 100 Texas cities or neighborhoods. Staff could not identify any local vendor that provides this equipment or installation services. The City obtained two informal quotes to ensure that the pricing was competitive (Exhibit 1). The pricing quoted by Kraftsman is comparable and provided the best value (Exhibit 2). Pricing obtained through the Buy Board Cooperative Purchasing Network has been competitively bid and meets the statutory requirements of Texas Local Government Code 271.102. Therefore, Kraftsman Commercial Playgrounds and Water Parks has been determined to be the best value for this project. EXHIBIT 1 RECOMMENDATION Staff recommends awarding a contract through the Buy Board Cooperative Purchasing Network (Contract4512-16) to Kraftsman Commercial Playgrounds and Water Parks for the purchase and installation of a Splash Park at Carl G. Young Park in the amount of $252,093.97. PRINCIPAL PLACE OF BUSINESS Kraftsman Commercial Playgrounds and Water Parks Spring, Texas ESTIMATED SCHEDULE OF PROJECT This project is estimated to be completed by the end of September 2017. FISCAL INFORMATION This project will be funded from 2014 Bond Funds, and Park Development Funds using account# 400175470. 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 1: Agenda Information Sheet Exhibit 2: Price Comparison Exhibit 3: Quote Exhibit 4: Ordinance Exhibit 5: Contract Respectfully submitted: Galen Gillum, 349-7656 Director of Capital Projects For information concerning this acquisition, contact: Jim Mays at 940-349-7465 no LO IDenton, City of 'a Ijim Mays Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 iS IDenton Splash Park - Gene Young Park Vendor #1009200 Quote #Q56955 Page: 1 Date: 5/25/2017 Project: 15260 By; Pat Kennedy Splash Park Proposal Drawing W13949 Ver 1, Opt B dated 3.01.16 Based on design for Project #15260, by Water Odyssey drawing #W13949.1.13; dated 3-01-16 1 C001 ColorCastTM Spin Flower with Magic 27,986.001 27,986.001 FIowTM stainless steel jet streams By Water Odyssey 1 W004C Daddy Long LegsTM, Water 5 to 9 3,132.001 3,132.001 Conserving. By: Water Odyssey. 1 W036C Baby Long Leg STM, Water Conserving. 3 1,464.001 1,464.001 By: Water Odyssey. 1 W040 -ST Water Web TM with Wired Activator 8-16 6,454.001 6,454.001 Button. By: Water Odyssey. 1 W085 Splash-O-LatorTM. By: Water 7 1,628.001 1,628.001 Odyssey. 1 W093 Water Weave TM. By: Water Odyssey. 14 3,802.001 3,802.001 2 W280 I Popp Drop pTm By: Water Odyssey. 3 1,464.001 2,928.001 Approx. Total Flow Rate: 79 GPM 1 WMF-08P Water distribution Manifold, Flanged 13,459.001 13,459.001 4" Stainless Steel Manifold for Wall Mount Installation w/pressure gauge, drain valve, water hammer arrestor, (2) Full Flanged 4"S inlet connections; (8) discharge assemblies each w/(1) true union ball valve and (1) 24VAC glass filled plastic solenoid valve. NOTE: Water pressure to the manifold must not exceed 50 psi. The installer must ensure this requirement is met. By 1 DSC -8-16 I Dynamic Sequence Controller with 8 8,550.001 8,550.001 hard -wired inputs and 16 outputs mounted in a NEMA4X housing. By: Water Odyssey. Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 1 DISCBB Discount on BuyBoard Purchase, BuyBoard Contract #512-16 Quote #Q56955 Page: 2 Date: 5/25/2017 Project: 15260 By; Pat Kennedy -24,291.001 -24,291.001 4 1 860-6PNV I Floor Drain, Fat Max, 9" dia. top, nickel 1 475.001 1,900.001 solid nickel top grate, 6" Sch 40 outlet, PVC body, Vandal proof screws, by Sioux Chief 1 AKWFS100 Aquakraft Water Filtration System - 18,500.001 18,500.001 100 GPM 1 I ENCLOSURE Filtration System Enclosure, 16'x16'. 17,300.001 17,300.001 Eave Height 8'. Vinyl Coated Chain Link with Metal Cover, Gable Ends. Concrete Slab for enclosure not included. (see Line Item below) 1 Concrete Pad for Enclosure 1 16x16 1 2,100.001 2,100.001 1 WRHT3 Water Reservoir Holding Tank, 3000 31,50 18,200.001 18,200.001 Concrete with epoxy coated interior, Galllon 0 with access lid and hatch; 11/2" Automatic fill valve with wall penetration; overflow and all penetrations as required by project design. 3000 Gallon; by Aqua Kraft 1 ECP-113-5SP ECP -UV Sanitization system with 3" 3" 1 18,111.001 18,111.001 flange connection for Flow rates up to 260 GPM. Complete validated system with Sanitation Chamber, Control Panel includes Audible Alarm. Requires a 220V 1 Phase circuit breaker. By AquaKraft 1 VALVE Rain Water Diverter Valve 1 10,000.001 10,000.001 1590 SPLASHDECKI Spray Play Pad, 5"thick concrete pad 1 sgft 1 12.751 20,272.501 with slope to drains, rebar reinforced, light broom finished to help prevent the possibility of slippage (no coloring or top coat), By: Kraftsman 1 SITE PREP 1 Site preparation for SplashDeck and 4,000.001 4,000.001 piping 1 MOBILIZATIO Mobilization for Splash Park or Park 5,000.001 5,000.001 N area construction. By: Kraftsman 1 INSURANCE- Name customer as additional insured 1,200.001 1,200.001 AI on General Liability Policy and processing of coverage. 1 BOND1 Performance & Payment Surety Bond, 6,628.151 6,628.151 and processing of the bond documentation. Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subtotal: Page: 3 Date: .............. 92 5/25/2017 Project: Tax: ........................................ 15260 By; Pat Kennedy Subtotal: $168,323.65 Shipping & Handling: .............. 92 Equipment Subtotal: $176,195 57 Tax: ........................................ ..,, .,... $0'.'00' Install: $75,898.40 Total: $ 252,093 97 Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Special Terms and Conditions Quote #Q56955 Subject: Buy Board Date: 5/23/2017 Proposal is submitted with applicable discounts per Buy Board program to reflect established discounts. Subject: Utilities Date: Customer is to plan, permit, and provide installation of utilities as follows (Kraftsman has not included costs for required improvements to utilities to support the SplashPark): • Electrical service, panel, and connection of electrical service to filtration pump motor starters, UV system (if applicable), chemical controller, and feature Dynamic Sequence Controller. Service is to be 240V, 3 Phase, 100 amp, for pumps and control systems, utility plugs and needed lighting if required. Kraftsman will complete all low voltage connections between control systems and valve manifolds. Electrical Bonding of all features, reinforcing steel, and filtration equipment per code requirements. City water meter with approved backflow preventer and water line connection to equipment area. A 1.5" water line is to be provided (the minimum water supply to system is to be 75 GPM, with a minimum of 35 PSI). Kraftsman will supply automated water fill control system. • Proper drain line to within 5' of edge of filtration equipment area for backwash discharge from filters and overflow from holding tank. Minimum of 8" size is to be provided. • Storm drain line to within 5' of holding for overflow. Kraftsman will connect drain boxes from SplashDeck to holding tank. Utility leads and required facility improvements are to be completed and ready for connection of new improvements prior to Kraftsman coming on site for construction of the SplashPark improvements. Subject: Credit Card Terms Date: If paying by American Express, there is a 6% processing fee charge. If paying by Visa or Master Card, there is a 4% processing fee charge. Subject: Bonding Date: Performance and Payment bonds are included in this quote and will be provided after a signed quote or contract is returned to Kraftsman. Maintenance Bonds are not included. Subject: Building Permits Date: • Building permits are not included or provided. • Engineer stamped plans for concrete and filtration are included. • Submittals and reviews for State of Texas ADA compliance and inspections are not included. Additional charges will apply if these services are provided and / or required for completion of the project. Subject: Site Work Date: • Proper/Positive drainage of the area is to be completed by others prior to start of construction by Kraftsman. • Preparation and submittal of SWPPP (Storm Water Pollution Prevention Plan) is not included. Page: 4 Date: 5/25/2017 Project: 15260 By; Pat Kennedy Subject: Buy Board Date: 5/23/2017 Proposal is submitted with applicable discounts per Buy Board program to reflect established discounts. Subject: Utilities Date: Customer is to plan, permit, and provide installation of utilities as follows (Kraftsman has not included costs for required improvements to utilities to support the SplashPark): • Electrical service, panel, and connection of electrical service to filtration pump motor starters, UV system (if applicable), chemical controller, and feature Dynamic Sequence Controller. Service is to be 240V, 3 Phase, 100 amp, for pumps and control systems, utility plugs and needed lighting if required. Kraftsman will complete all low voltage connections between control systems and valve manifolds. Electrical Bonding of all features, reinforcing steel, and filtration equipment per code requirements. City water meter with approved backflow preventer and water line connection to equipment area. A 1.5" water line is to be provided (the minimum water supply to system is to be 75 GPM, with a minimum of 35 PSI). Kraftsman will supply automated water fill control system. • Proper drain line to within 5' of edge of filtration equipment area for backwash discharge from filters and overflow from holding tank. Minimum of 8" size is to be provided. • Storm drain line to within 5' of holding for overflow. Kraftsman will connect drain boxes from SplashDeck to holding tank. Utility leads and required facility improvements are to be completed and ready for connection of new improvements prior to Kraftsman coming on site for construction of the SplashPark improvements. Subject: Credit Card Terms Date: If paying by American Express, there is a 6% processing fee charge. If paying by Visa or Master Card, there is a 4% processing fee charge. Subject: Bonding Date: Performance and Payment bonds are included in this quote and will be provided after a signed quote or contract is returned to Kraftsman. Maintenance Bonds are not included. Subject: Building Permits Date: • Building permits are not included or provided. • Engineer stamped plans for concrete and filtration are included. • Submittals and reviews for State of Texas ADA compliance and inspections are not included. Additional charges will apply if these services are provided and / or required for completion of the project. Subject: Site Work Date: • Proper/Positive drainage of the area is to be completed by others prior to start of construction by Kraftsman. • Preparation and submittal of SWPPP (Storm Water Pollution Prevention Plan) is not included. Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subject: Locating for Underground Utilities Date: • Kraftsman will call and arrange for utility locating with the public utilities stake out providers. All Public Utilities, including Phone, Electrical, Gas, Cable, and Fiber Optics are to be staked prior to installation. Kraftsman will arrange with Public Utility Stake Out providers for a date that this is to be completed prior to Kraftsman arriving on site. • Customer is to locate, mark, and provide information for all privately owned utilities that are not marked by the Public Utility providers, for all utility service lines below grade that are privately owned. These will include any and all of the following: electrical, water lines, gas lines, irrigation lines, sewer and storm lines, cable service lines, fiber optic or other IT lines, which are privately owned by the property owner. • Kraftsman is not responsible for any underground utilities which are not marked or located by the owner or public utilities stake out providers. Damages to underground utilities for electrical, water, irrigation, and other listed above will not be repaired by Kraftsman and will be the owner's expense and responsibility. Subject: Items Not Included Date: • Finish landscaping, sodding or seeding of disturbed areas. All disturbed areas to be leveled and raked out. • Concrete SplashDeck surfacing. • Concrete lead walks or adjoining observation concrete deck areas. • Shade systems or site amenities. • Site usage signage for use instructions, rules, safety, or emergency notifications as needed or required. • SplashDeck top surfacing for slip resistance, colorization, or fall absorbency. SplashDeck shall be Medium Broom Finished concrete for slip resistance. • Temporary security fence during construction. • Storm Water Pollution Controls for project site. • Safety wash station for chemical use area in filtration equipment enclosure if required. Subject: Insurance Terms Date: Kraftsman will supply a certificate of insurance verifying the limits of coverage. See terms page for details and charges for naming additional insured parties or adding special coverage's if reauired. Subject: Sales Tax Date: Sales tax is not included in prices quoted. Customer is to supply Sales Tax Exemption or Sales Tax Resale certificate at time of acceptance of proposal, or sales tax will be added to final contract and invoicing for the project. Subject: Installation Date: Installation quoted includes: Installation of SplashPark feature foundations, setting features, water supply piping to features from manifold (manifold is to be located within 50' of SplashDeck), connections between activators and controller, drain lines to edge of pad, per standard Kraftsman construction techniques. Installation price does not include concrete pad or surfacing. Subject: Filtration Spec: High Rate Sand Filtration Date: Pumping, Filtration, and Water Treatment System, self -priming pump with integral large capacity clear top strainer; high rate sand filters with manual backwash valve, connected to Play Feature manifolds, pressure relief "dump" valve connected to holding tank. Chemtrol CH250 Chemical Controller with auto safety shutdown, Liquid Muriatic Acid pH treatment system and Liquid chlorine treatment system. Dynamic Sequencing Controller connected to feature valves, and motor starter. Subject: Start Up & System Training Date: Service includes one day of technical support personnel on site to assist with balancing of features, system start up, and 4 hours of staff operations training. Page: 5 Date: 5/25/2017 Project: 15260 By; Pat Kennedy Subject: Locating for Underground Utilities Date: • Kraftsman will call and arrange for utility locating with the public utilities stake out providers. All Public Utilities, including Phone, Electrical, Gas, Cable, and Fiber Optics are to be staked prior to installation. Kraftsman will arrange with Public Utility Stake Out providers for a date that this is to be completed prior to Kraftsman arriving on site. • Customer is to locate, mark, and provide information for all privately owned utilities that are not marked by the Public Utility providers, for all utility service lines below grade that are privately owned. These will include any and all of the following: electrical, water lines, gas lines, irrigation lines, sewer and storm lines, cable service lines, fiber optic or other IT lines, which are privately owned by the property owner. • Kraftsman is not responsible for any underground utilities which are not marked or located by the owner or public utilities stake out providers. Damages to underground utilities for electrical, water, irrigation, and other listed above will not be repaired by Kraftsman and will be the owner's expense and responsibility. Subject: Items Not Included Date: • Finish landscaping, sodding or seeding of disturbed areas. All disturbed areas to be leveled and raked out. • Concrete SplashDeck surfacing. • Concrete lead walks or adjoining observation concrete deck areas. • Shade systems or site amenities. • Site usage signage for use instructions, rules, safety, or emergency notifications as needed or required. • SplashDeck top surfacing for slip resistance, colorization, or fall absorbency. SplashDeck shall be Medium Broom Finished concrete for slip resistance. • Temporary security fence during construction. • Storm Water Pollution Controls for project site. • Safety wash station for chemical use area in filtration equipment enclosure if required. Subject: Insurance Terms Date: Kraftsman will supply a certificate of insurance verifying the limits of coverage. See terms page for details and charges for naming additional insured parties or adding special coverage's if reauired. Subject: Sales Tax Date: Sales tax is not included in prices quoted. Customer is to supply Sales Tax Exemption or Sales Tax Resale certificate at time of acceptance of proposal, or sales tax will be added to final contract and invoicing for the project. Subject: Installation Date: Installation quoted includes: Installation of SplashPark feature foundations, setting features, water supply piping to features from manifold (manifold is to be located within 50' of SplashDeck), connections between activators and controller, drain lines to edge of pad, per standard Kraftsman construction techniques. Installation price does not include concrete pad or surfacing. Subject: Filtration Spec: High Rate Sand Filtration Date: Pumping, Filtration, and Water Treatment System, self -priming pump with integral large capacity clear top strainer; high rate sand filters with manual backwash valve, connected to Play Feature manifolds, pressure relief "dump" valve connected to holding tank. Chemtrol CH250 Chemical Controller with auto safety shutdown, Liquid Muriatic Acid pH treatment system and Liquid chlorine treatment system. Dynamic Sequencing Controller connected to feature valves, and motor starter. Subject: Start Up & System Training Date: Service includes one day of technical support personnel on site to assist with balancing of features, system start up, and 4 hours of staff operations training. Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subject: Project Completion Date: Allow 4 to 8 weeks for preparation of plans, drawings, and submittals after acceptance of proposal. Shipping date of equipment from factory will be approximately 6 to 10 weeks after approval of submittal documentation, provided that the following has been completed and approved by the customer: • Project product submittals reviewed, approved and returned. • Completed Color selection sheet (signed and dated) • Physical project address • All contact names and phone numbers • Exemption certificate • Deposit per contract Allow adequate time for processing and procuring construction permits if required. Allow approximately 10 to 16 weeks for project completion upon equipment delivery from manufacturer, issuance of building permits if required, weather permitting. Subject: Delivery and Unloading Date: Kraftsman is responsible for insuring that adequate staff and equipment resources are available for timely off-loading, safe handling, and secure storage of equipment upon receipt from motor freight carrier of installed product shipments. Unloading of materials from the truck will potentially require material handling equipment, i.e. forklift, pallet jack(s), to properly remove equipment from the delivery truck. In Most Cases when Kraftsman is installing a project the product will be received at Kraftsman's Warehouse and stored until needed on the project. Then transported to the site at the time of installation. Subject: Monthly Progress Billings Date: All work completed and Materials stored as of the last day of the month shall be billed on or before the 25th of said month. Pavments to be received by the 15th of the following month. Shipping & Handling: Page: 6 Date: 5/25/2017 Project: 15260 By; Pat Kennedy Subject: Project Completion Date: Allow 4 to 8 weeks for preparation of plans, drawings, and submittals after acceptance of proposal. Shipping date of equipment from factory will be approximately 6 to 10 weeks after approval of submittal documentation, provided that the following has been completed and approved by the customer: • Project product submittals reviewed, approved and returned. • Completed Color selection sheet (signed and dated) • Physical project address • All contact names and phone numbers • Exemption certificate • Deposit per contract Allow adequate time for processing and procuring construction permits if required. Allow approximately 10 to 16 weeks for project completion upon equipment delivery from manufacturer, issuance of building permits if required, weather permitting. Subject: Delivery and Unloading Date: Kraftsman is responsible for insuring that adequate staff and equipment resources are available for timely off-loading, safe handling, and secure storage of equipment upon receipt from motor freight carrier of installed product shipments. Unloading of materials from the truck will potentially require material handling equipment, i.e. forklift, pallet jack(s), to properly remove equipment from the delivery truck. In Most Cases when Kraftsman is installing a project the product will be received at Kraftsman's Warehouse and stored until needed on the project. Then transported to the site at the time of installation. Subject: Monthly Progress Billings Date: All work completed and Materials stored as of the last day of the month shall be billed on or before the 25th of said month. Pavments to be received by the 15th of the following month. Shipping & Handling: Kraftsman EXHIBIT 3 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 General Terms and Conditions Sold To: Denton, City of Terms: Percentage Completed Draws Monthly [K.7►1QIIto] 011001MY-114 Quote #Q56955 Ship To: Denton Splash Park -Gene Young Park 1. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the contract. 2. No returns of merchandise will be accepted unless previously authorized in writing by Kraftsman. All returns are subject to restocking fee of 25% plus freight charges incurred for return to original shipment origination. 3. Title for all equipment is reserved by Kraftsman Commercial Playgrounds and Water Parks until payment in full is received. The right to enter the property and repossess said equipment is hereby granted to Kraftsman Commercial Playgrounds and Water Parks if payment is not rendered in accordance with the terms above. All payments made prior to repossession under this contract shall be forfeited to Kraftsman Commercial Playgrounds and Water Parks as cost incurred to recover the equipment. Repossession of product does not waive any damages or costs due as awarded by the court. 4. All collections or litigation concerning this contract shall be governed by the laws of the State of Texas, with venue in Harris County. 5. Kraftsman warranties the merchandise on this proposal to be up to the manufacturers published standards as to material and workmanship. See catalogs or attached drawings for specific layouts, warranties, and specifications . 6. Kraftsman reserves the right to review contract for final acceptance by management and to make corrections of clerical errors. 7. A service charge of 1.5% per month will be assessed on all past due amounts. 8. Payments to Kraftsman by credit card will incur a processing fee of 4% for Visa and MasterCard, and 6% for American Express. 9. Installation services include all labor, equipment required to complete the job, and insurance coverage's as required by law. Extra installation charges will incur for abnormal sub surfaces, ie. rock, landfill, etc. Price quoted includes Kraftsman's standard insurance coverages of $2 million in General Liability & Completed operations, $1 million in Automobile Liability, $1 million per occurrence/$2 aggregate in Workman's Compensation. Any charges by Kraftsman's insurance carrier or agents for adding General Contractor or Owner as additional insured, waivers of subrogation, or changes to standard coverage shall be added to contract charges. No performance bond or labor and material payment bonds shall be provided by Kraftsman, unless listed as individual line item in proposal. 10. Kraftsman Commercial Playgrounds and Water Parks is not liable for damages to underground utilities, and irrigations systems during installation. It is the customers responsibility to locate all underground utilities. 11. Building permits required by local or state authorities & municipalities are not included and are the responsibility of the owner of the property, unless specifically included as a line item in the proposal. If you want Kraftsman to handle required permitting please contact our office and we will provide a quote if not included as a line item within this proposal. 12. This proposal may be withdrawn by Kraftsman if not accepted within thirty (30) days. Respectfully Submitted: Pat Kennedy Acceptance of Proposal: Date: May 25, 2017 The prices, specification and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. If contract is placed with an attorney for suit or collection through probate, bankruptcy or other legal proceedings, customer agrees to pay all expenses and reasonable attorney fees incurred. Any verbal instructions, agreements, or promises are not valid unless written as part of this contract. Authorized Signature: Printed Name & Title: Authorized Signature: Printed Name & Title: PO#. Date of Acceptance: WE STRONGLY RECOMMEND A RESILIENT FALL SURFACE BE INSTALLED UNDER ALL PLAY & FITNESS EQUIPMENT Thank You! We Appreciate Your Business! Page: 7 Date: 5/25/2017 Project: 15260 By; Pat Kennedy Ship To: Denton Splash Park -Gene Young Park 1. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the contract. 2. No returns of merchandise will be accepted unless previously authorized in writing by Kraftsman. All returns are subject to restocking fee of 25% plus freight charges incurred for return to original shipment origination. 3. Title for all equipment is reserved by Kraftsman Commercial Playgrounds and Water Parks until payment in full is received. The right to enter the property and repossess said equipment is hereby granted to Kraftsman Commercial Playgrounds and Water Parks if payment is not rendered in accordance with the terms above. All payments made prior to repossession under this contract shall be forfeited to Kraftsman Commercial Playgrounds and Water Parks as cost incurred to recover the equipment. Repossession of product does not waive any damages or costs due as awarded by the court. 4. All collections or litigation concerning this contract shall be governed by the laws of the State of Texas, with venue in Harris County. 5. Kraftsman warranties the merchandise on this proposal to be up to the manufacturers published standards as to material and workmanship. See catalogs or attached drawings for specific layouts, warranties, and specifications . 6. Kraftsman reserves the right to review contract for final acceptance by management and to make corrections of clerical errors. 7. A service charge of 1.5% per month will be assessed on all past due amounts. 8. Payments to Kraftsman by credit card will incur a processing fee of 4% for Visa and MasterCard, and 6% for American Express. 9. Installation services include all labor, equipment required to complete the job, and insurance coverage's as required by law. Extra installation charges will incur for abnormal sub surfaces, ie. rock, landfill, etc. Price quoted includes Kraftsman's standard insurance coverages of $2 million in General Liability & Completed operations, $1 million in Automobile Liability, $1 million per occurrence/$2 aggregate in Workman's Compensation. Any charges by Kraftsman's insurance carrier or agents for adding General Contractor or Owner as additional insured, waivers of subrogation, or changes to standard coverage shall be added to contract charges. No performance bond or labor and material payment bonds shall be provided by Kraftsman, unless listed as individual line item in proposal. 10. Kraftsman Commercial Playgrounds and Water Parks is not liable for damages to underground utilities, and irrigations systems during installation. It is the customers responsibility to locate all underground utilities. 11. Building permits required by local or state authorities & municipalities are not included and are the responsibility of the owner of the property, unless specifically included as a line item in the proposal. If you want Kraftsman to handle required permitting please contact our office and we will provide a quote if not included as a line item within this proposal. 12. This proposal may be withdrawn by Kraftsman if not accepted within thirty (30) days. Respectfully Submitted: Pat Kennedy Acceptance of Proposal: Date: May 25, 2017 The prices, specification and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. If contract is placed with an attorney for suit or collection through probate, bankruptcy or other legal proceedings, customer agrees to pay all expenses and reasonable attorney fees incurred. Any verbal instructions, agreements, or promises are not valid unless written as part of this contract. Authorized Signature: Printed Name & Title: Authorized Signature: Printed Name & Title: PO#. Date of Acceptance: WE STRONGLY RECOMMEND A RESILIENT FALL SURFACE BE INSTALLED UNDER ALL PLAY & FITNESS EQUIPMENT Thank You! We Appreciate Your Business! EXHIBIT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT FOR THE INSTALLATION OF A SPLASH PARK AT THE CITY OF DENTON CARL G. YOUNG PARK LOCATED AT 327 SOUTH WOOD STREET AS AWARDED BY THE BUY BOARD COOPERATIVE PURCHASING NETWORK CONTRACT# 512-16; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE NO. 6450 -AWARDED TO KRAFTSMAN COMMERCIAL PLAYGROUNDS AND WATER PARKS, INC. IN THE NOT -TO -EXCEED AMOUNT OF $252,093.97.) 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 6450 Kraftsman Commercial Playgrounds and Water Parks, Inc. $252,093.97 ("the Proposal") 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. EXHIBIT 4 SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Buy Board Cooperative Purchasing Network, the City Manager, or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, and standards contained in the Proposal submitted to the Buy Board Cooperative Purchasing Network, and related documents herein approved and accepted. 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 No. 6450 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 , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WAL TERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY: EXHIBIT 5 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND KRAFTSMAN COMMERCIAL PLAYGROUNDS AND WATER PARKS (CONTRACT # 6450) THIS CONTRACT is made and entered into this date , by and between Kraftsman Commercial Playgrounds and Water Parks a Partnership whose address is 19535 Haude Road, Spring, TX 77388, 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 Contract # 6450 — Splash Park at the City of Denton Carl G. Young_ParlcPark, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes as "Exhibit B". 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) General Provisions -Standard Terms and Conditions (Exhibit "B"); (c) Payment and Performance Bond Requirements (Exhibit "C"); (d) Insurance Requirements (Exhibit "D"); (e) Certificate of Interested Parties Electronic Filing (Exhibit "E"); (f) Contractor's Proposal. (Exhibit "F"); (g) Form CIQ — Conflict of Interest Questionnaire (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 Contract in the year and day first above written. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 Kraftsman LP CONTRACTOR BY: CDocuSigned. by: 6" �G"Vl AUTHORiZ,r3ii931U vti 1 Unr, Date: 6/1/2017 Name: Korey Soderberg Title: Vice President 713-703-9694 PHONE NUMBER Koreys@kppe.com EMAIL ADDRESS 2017-217328 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS A Texas Municipal Corporation By: TODD HILEMAN CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY OocuSigned by: By: 59 �2538HC458zE9... Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 EXHIBIT A SPECIAL TERMS AND CONDITIONS Total Contract Amount The Contract total for services shall not exceed $252,093.97. Pricing shall be per Exhibit F attached. Contract Term The Contract shall commence upon the issuance of a Notice to Proceed. After bonds have been received and approved for this project, Contractor shall begin work on site within fifteen (15) calendar days of receipt of Notice to Proceed. The Splash Park should reach substantially completed by August 31, 2017 and be ready for public use by September 15, 2017. Delays are further discussed in the Standard Terms and Conditions Exhibit B, Section 8.3. Scope Modification This contract is for purchase and installation of a Splash Park at the City of Denton Carl G. Young Park. The Splash Park will contain spray jets and water features such as water cannons and dumping buckets. Since there will be no standing water at this location, no life guards will be required. This also allows for the park to be available for use for more hours per week than a standard pool. The Splash Park will be approximately 40 feet in diameter and will utilize reclaimed water from the park site. This will be Denton's first Splash Park amenity and will be a welcome addition to the Denton local community. Exhibit F, includes the reduced scope pricing. 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. 3. It is understood that the basis for payment on the work to be done according to the final plans and specifications shall be a lump sum fee as set forth in Contractor's Proposal. Any quantity estimates supplied by Designer or Owner are intended only as a guide to the respondent. Contractor is responsible for making his own quantity estimates and pricing from his own examination of the work to be done. 4. A schedule of Contractor's Quantities and Unit Prices is to be filled out as a part of this bid. Extensions of units and unit prices must total up correctly. City of Denton Duties and Responsibilities: The Facilities Department shall pay for all necessary permits. The contractor is responsible for obtaining the permits. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 EXHIBIT B GENERAL PROVISIONS- TERMS AND CONDITIONS FOR FACILITY CONSTRUCTION SERVICES 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 (30) days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The thirty (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 date is later. Direct deposit for payments: Prime 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.coin. 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 Department, 869 S. Woodrow, Denton, TX 76205. The copy may also be emailed to Mr. Lutrick at chris.lutric@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 (5) 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 Prime 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 Prime Contractor for constriction accomplished during the preceding calendar month on the basis of completed constriction certified to by the Prime 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 constriction of the project shall be paid by the Owner Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 to the Prime Contractor prior to completion of the Project. Upon the approval by the Owner of the Prime Contractor's "Final Invoice for Payment" showing the total cost of the constriction performed, the Owner shall make payment to the Prime Contractor of all amounts to which the Prime Contractor shall be entitled there tinder 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 constriction of the Project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Prime Contractor. B. The Prime Contractor shall be paid on the basis of the percentage of the work actually completed for each constriction item. The total amount paid for periodic billings shall not exceed the maximum Contract price for the constriction 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 Prime Contractor is in default in respect of any of the provisions of this Contract, and the Owner may withhold from the Prime Contractor the amount of any claim by any third party against either the Prime Contractor or the Owner based upon an alleged failure of the Prime Contractor to perform the work hereunder in accordance with the provisions of this Contract. This includes, without limitation, the alleged failure of the Prime Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Upon award of the Contract, the Prime Contractor shall inform the Owner of the subcontractors and material sources that will be used. Upon the completion by the Prime Contractor of the constriction of the Project, but prior to final payment to the Prime Contractor, the Prime Contractor shall deliver to the Owner releases of all liens, and of rights to claim any lien, from all manufacturers, materialmen 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 fiilly released from all such claims. 5. PAYMENTS TO MATERIALMEN AND SUBCONTRACTORS: The Prime 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 constriction performed by each materialman or each subcontractor. 6. REMEDIES: A. Completion of Prime Contractor's Default If default shall be made by the Prime 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 Prime Contractor and the Surety or Sureties upon the Prime Contractor's bond or bonds a written notice requiring the Prime Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Prime Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and/or Architect/Engineer shall be made by the Prime Contractor or its Surety or Sureties, the Owner may take over the constriction of the Project and prosecute the same to completion Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 by Contract or otherwise for the account and at the expense of the Prime Contractor, and the Prime 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 Prime 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 Prime Contractor may have against third persons in connection with this Contract and for such purpose the Prime 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 constriction 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 City shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of FIVE HUNDRED DOLLARS $500.00 per day for each and every day, including weekends, that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty; if the amount due and to become due from the City to the Contractor is insufficient to pay in fiull any such liquidated damages, the Contractor shall pay to the City the amount necessary to effect such payment in full: Provided, however, that the City 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 Prime Contractor to complete the constriction of the Project within the time herein agreed upon. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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 Prime 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 Constriction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Prime 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 Constriction Services Agreement between the Owner and the Prime 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 Prime 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: Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (1) between the Architect/Engineer and Prime Contractor; (2) between the Owner and a Subcontractor or -subcontractor; or (3) between any persons or entities other than the Owner and Prime Contractor. The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect/Engineer's duties. 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 Prime Contractor, or any Subcontractors, Sub -subcontractors, material suppliers, or any other entity for whom the Prime Contractor is responsible, to fiilfill the Prime 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 Constriction 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 constriction 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, constriction 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 Constriction, 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor's Bid. 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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, riles, 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, constriction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Constriction Services Agreement shall be signed by duly authorized representatives of the Owner and Prime Contractor as provided in the Agreement. (b) Execution of the Building Constriction Services Agreement by the Prime Contractor is a representation that the Prime Contractor has visited the site, has 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 Prime Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Prime 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 Prime Contractor in dividing the Work among Subcontractor(s) 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 constriction industry meanings are used in the Contract Documents in accordance with such recognized meanings. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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; (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) Othe Specifications and Drawings. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 1.30WNERSHIP 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 PRIME 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (c) Information or services tinder the Owner's control shall be fiirnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Prime 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 Prime Contractor as scheduled and Prime Contractor is not prepared to accept or act on such information or services, then Prime 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 Prime 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. Prime 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 Prime 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 Prime 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 Prime Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Prime 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 Prime 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 Prime Contractor or any other person or entity. The rights of the Owner tinder this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights tinder Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Prime 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 written notice from the Owner, the Owner may correct the Prime Contractor's failure or refusal or Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor from payments then or thereafter due to the Prime Contractor. The cost of correction is subject to verification (but not approval) by the Architect/Engineer. If payments then or thereafter due the Prime Contractor are not sufficient to cover the cost of correction, the Prime 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 Prime Contractor, the Prime 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 Prime 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 Prime Contractor is the person or business entity identified as such in the Building Constriction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Prime Contractor" means the Prime Contractor or the Prime Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Prime Contractor shall carefiully 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 Prime Contractor may discover. The Prime Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Prime 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 Prime 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 Prime 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 Prime Contractor shall also be responsible to correct any failure of Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 component parts to coordinate or fit properly into final position as a result of Prime 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 Prime 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 Prime Contractor shall supervise and direct the Work, using the Prime Contractor's best skill and attention. The Prime 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 Prime Contractor shall be responsible to the Owner for the acts and omissions of the Prime 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 Prime Contractor, or with any Subcontractor, and all other persons or entities for which the Prime 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 Prime Contractor. (c) The Prime 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 Prime Contractor. (d) The Prime 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 Prime 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 Prime 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 any separate contractor, without the Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor. The Prime Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Contractor 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 Prime 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 Prime Contractor shall enforce strict discipline and good order among the Prime Contractor's employees and all other persons carrying out the Contract. The Prime Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Prime 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) residents of the City of Denton, Texas; (2) residents of the County of Denton, Texas; 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK; OR, IF A LATENT DEFECT IS DISCOVERED WITHIN TWO YEARS OF SUBSTATIONAL COMPLETION OF THE ENTIRE WORK. (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 fiirnished 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 Prime 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 Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (c) Except as provided in Subparagraph (d) below, it is not the Prime Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and riles and regulations. However, if the Prime Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, constriction codes, riles or regulations, the Prime Contractor shall promptly notify the Architect/Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Prime Contractor performs Work knowing it to be contrary to laws, ordinances, constriction codes, or riles and regulations without notifying the Architect/Engineer and the Owner, the Prime 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 Prime 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 Prime Contractor shall not be required to employ persons or entities against which the Prime 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 Prime 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 Prime 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 Prime Contractor to perform work activities covered by allowances. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 3.9 SUPERINTENDENT The Prime 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 Prime Contractor, and communications given to the superintendent shall be as binding as if given to the Prime 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 Prime Contractor replace its superintendent at any time and the Prime Contractor will replace said superintendent at the Owner's direction. 3.10 PRIME CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Prime Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the constriction 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 constriction 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 constriction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Prime Contractor; and (ii) the latest date for approval by the Architect/Engineer. (3) The constriction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor") of all the major constriction 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 constriction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime Contractor shall prepare and submit to the Architect/Engineer and the Owner an up-to-date status report of the progress of the various constriction 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 constriction 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 Prime Contractor's Application for Payment. No such application will be certified without a satisfactory update to the constriction schedule. (6) The constriction 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 Prime Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Prime 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 Prime Contractor in preparing and maintaining the required constriction 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 constriction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE PRIME 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 Prime Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Prime Contractor's constriction schedule and allows the Architect/Engineer reasonable time to review submittals. (c) The Prime 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 Prime Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved constriction schedule, the Prime 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 constriction 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 constriction, 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, materialmen, manufacturer(s), supplier(s), or distributor(s) 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 Prime 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 Prime Contractor which are not required by the Contract Documents may be returned without action. (f) The Prime 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 Prime Contractor represents that the Prime 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 Prime Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Prime 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 Prime Contractor has specifically informed the Architect/Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Prime Contractor shall not damage or endanger a portion of the Work or any fully or partially completed constriction of the Owner or separate contractors by cutting, patching, or otherwise altering the constriction, or by excavating. The Prime Contractor shall not cut or otherwise alter the constriction 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 Prime Contractor shall not unreasonably withhold from the Owner or a separate contractor the Prime Contractor's consent to cutting or otherwise altering the Work. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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 Prime Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Prime Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Prime Contractor fails to clean up as provided in the Contract Documents, the Owner may, at Owner's option, clean up the Project site, and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Prime 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 Prime 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 Prime Contractor shall bear all related costs of tests, inspections, and approvals. The Prime 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 Prime Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Prime 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). Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (c) If procedures for testing, inspection, or approval cinder Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Prime 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 Prime 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 Prime 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 LIABILITIES, 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 PATENT INFRINGEMENT. In the event the Prime Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Prime Contractor shall immediately notify the Owner and the Architect/Engineer of same. 3.19 INDEMNIFICATION (a) THE PRIME CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LIABILITIES, 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 PRIME CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB -SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE PRIME 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 THIRD PERSON OR ENTITY. (b) In claims against any person or entity indemnified tinder this Paragraph 3.19 by an employee of the Prime Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation tinder 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 Prime Contractor or any 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 Prime Contractor specifically agrees to comply with the above- mentioned laws and regulations in the performance of the Work by the Prime Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect/Engineer tinder the above-mentioned laws and regulations are secondary to those of the Prime Contractor. ARTICLE 4 - CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER) (a) The design professional is the person lawfiilly 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 Prime Contractor. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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 Prime 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, constriction 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 Prime 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 Prime 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 Prime Contractor, the provisions of the Owner/Architect/Engineer Agreement will be made available to the Prime Contractor. (b) The Architect/Engineer shall provide, during performance of the Work, adequate and competent periodic on-site constriction 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 constriction 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 Prime Contractor or any Subcontractor which are not in the best interests of the Owner or the Proj ect. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Prime 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 Prime Contractor, Subcontractors, Sub -subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Prime Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Prime 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 Prime Contractor. Communications by and with separate contractors will be through the Owner. The Prime 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 Prime Contractor's Applications for Payment, the Architect/Engineer will review and certify the amounts due the Prime 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 Prime 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 Prime 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 Prime Contractor as required by the Contract Documents. The Architect/Engineer's review of the Prime Contractor's submittals shall not relieve the Prime Contractor of any obligations under Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute approval of safety precautions or, sinless 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 Prime 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 Prime 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 Prime 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 the 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, WITHOUT EXCEPTION, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT/ENGINEER AND TO THE OWNER WITHIN FOURTEEN (14) DAYS IMMEDIATELY AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Prime 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 Prime Contractor by his signature) of the Prime Contractor, verifying the truth and accuracy of the Claim. THE PRIME CONTRACTOR SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURES AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the Prime 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 Prime 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 Prime 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: Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 PRIME CONTRACTOR AT THE PRIME 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 Prime 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 Prime 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 Prime 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 Prime Contractor was not at fault; or (6) other reasonable grounds. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (g) Injury or Damage to Person or Property. If the Prime 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 Prime Contractor asserts a claim to the Prime Contractor, that the Prime Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Prime 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 Prime Contractor to seek and assert such claim against the Owner: (ii) The Prime 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 Prime Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Prime Contractor has agreed to be legally responsible to the Subcontractor for pursuing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Prime 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 Prime 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 Prime Contractor in the claim submittal materials. (ii) The Prime 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 Prime Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Prime Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed by the Contractor to be valid. (iii) The Subcontractor making the claim to the Prime 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 Prime Contractor in the claim submittal materials made by Contractor to the Owner. (3) Any failure of the Prime 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 against Owner. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (4) Receipt and review of a claim by the Owner tinder this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or by applicable law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Prime 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 Prime Contractor falls behind the approved constriction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Prime 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 Prime Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Prime Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Prime 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 Prime Contractor provided within fourteen (14) days after receipt of the Prime Contractor's Claim. If the Owner denies the Prime Contractor's claim for an extension of Contract Time tinder this Clause (i)(2), either in whole or in part, the Prime 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 Prime 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 Prime Contractor may initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated by the Prime 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 constriction 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; provided however, not to exceed five (5%) per cent, 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). Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 APPLICABLE STATE LAW. ARTICLE 5 - SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct Contract with the Prime Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Constriction Services Agreement is signed by the Prime Contractor and the Owner, the Prime 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 fiirnishings when made a part of the Contract. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Prime Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Prime Contractor all the obligations and responsibilities which the Prime 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 Prime Contractor shall require each Subcontractor to enter into similar agreements with Sub -subcontractors. The Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (b) The Prime Contractor is solely responsible for making payments properly to the Prime Contractor's Subcontractors on the Project. During performance of the Work, the Prime Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Prime 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 Prime Contractor (phis 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 Prime 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 by Subcontractor 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 FOR PAYMENT. (2) If, for any reason, the Prime Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Prime Contractor shall note the amount withheld and further note that the payment is in dispute. The Owner may, in its sole discretion, require the Prime 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 Prime 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 Prime Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Prime Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE PRIME 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 PRIME CONTRACTOR. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner tinder Article 14, the Prime 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 Prime 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, Prime 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 constriction 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 Prime Contractor claims that delay or additional cost is involved because of such action by the Owner, the Prime 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 constriction 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 Constriction 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 Prime Contractor, who shall cooperate with them. The Prime Contractor shall participate with other separate contractors and the Owner in reviewing their constriction schedules when directed to do so. The Prime Contractor shall, with the approval of the Owner, make any revisions to the constriction schedule deemed necessary after a joint review and mutual agreement. The constriction schedules shall then constitute the schedules to be used by the Prime Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Prime Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Prime Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Prime Contractor's Change Order proposal is denied by the Owner, the Prime Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (d) Unless otherwise provided in the Contract Documents, when the Owner performs constriction 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 Prime 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 Prime 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 Prime Contractor's constriction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Prime Contractor's Work depends for proper execution or results upon constriction or operations by the Owner or a separate contractor, the Prime Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in the other constriction that would render it unsuitable for proper execution and results. Failure of the Prime Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed constriction is fit and proper to receive the Prime Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the prime Contractor for damages suffered by the Prime 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 Prime Contractor and a separate contractor, the Architect/Engineer or the Owner may fiirnish the Prime Contractor with written instructions designating priority of effort or change in methods, whereupon the Prime Contractor shall immediately comply with such direction. In such event, the Prime 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 Prime Contractor. (d) The Prime Contractor shall promptly remedy damage wrongfully caused by the Prime Contractor to completed or partially completed constriction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Prime Contractor cause damage to the work or property of any separate contractor on the Project, the Prime 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 Prime Contractor who shall defend such proceedings, at the Prime Contractor's sole expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Prime Contractor shall fully pay or satisfy it and shall reimburse the Owner for any and all attorney's fees and costs which the Owner has incurred. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Prime 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, but is not obligated to do so, and Owner shall allocate the cost among those parties 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 sinless 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 not -to -exceed lump -sum amount properly itemized and supported by sufficient substantiating data to permit evaluation; or (2) unit prices stated in the Contract Documents or subsequently agreed upon; or (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 on 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 fifteen (15%) per cent. 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 worker's 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; Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 tinder 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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, Ordinance 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 Prime Contractor, or of persons or entities for whom the Prime 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 Prime Contractor, the Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Prime 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 fiirnished by the Prime 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. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Prime 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 Prime 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 PRIME 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 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 PRIME 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (e) The Prime Contractor shall promptly suspend the Work when either the Prime Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Prime Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Prime 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 Prime 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 Prime 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 Prime Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Prime 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 Prime Contractor or any of the Subcontractors, for which the Prime 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 Prime Contractor is entitled to a time extension, as determined by the Architect/Engineer, Owner may similarly direct acceleration and the Prime Contractor agrees to perform same on the basis that the Prime Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE PRIME 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 Prime Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 used as a basis for the Prime Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Prime 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 Prime 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 Prime 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. Prime 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 Prime Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Prime Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Prime Contractor's Payment Bond Surety consents in writing to payment to the Prime 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 PRIME CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Prime 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 Prime 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 Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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, Prime Contractor shall, at Prime 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 Prime Contractor fails or refiises to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Prime Contractor's sole expense, and amounts may be withheld from the Prime 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, and if performance and payment bonds are not fiirnished by the Contractor, then 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 Prime Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Prime Contractor, for such amount as the Architect/Engineer determines is properly due, or notify the Prime 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 fiirther constitute a representation that the Prime 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: Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Prime 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 Prime 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 five percent (5%) 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 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 by Change Order. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect/Engineer's or Owner's opinion the representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect/Engineer or the Owner will notify the Prime Contractor as provided in Subparagraph 9.4(a). If the Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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 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 all of the above reasons that existed for withholding certification are removed or remedied, then, at that time, 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 Prime 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 refiise 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Prime Contractor default remains uncured. (b) The Prime Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Prime 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 Prime Contractor on account of such Subcontractors portion of the Work. The Prime 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, fiirnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Prime 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 Prime Contractor or, in the event of the Prime 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 Prime Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Prime Contractor shall prepare and submit to the Architect/Engineer a comprehensive list of remaining items to be completed or corrected. The Prime 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 Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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 Prime Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor considers a portion Substantially Complete, the Prime Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Prime Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Prime Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Prime 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 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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 Prime 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 Prime Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Prime 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 Prime 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 Prime Contractor's affidavit under Clause (b)(1) shall state that the Prime Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to Contractor for the Work performed under this Contract. In the event the Prime Contractor has not paid each of his subcontractors, laborers or materialmen in fiill, the Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 Prime 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 PRIME 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 Prime Contractor or by issuance of Change Orders affecting final completion and the Architect/Engineer confirms the delay, the Owner shall, upon application by the Prime 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 fiirnished, the written consent of surety to payment of the balance due for that portion of the Work fiilly 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 Prime 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 Prime 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 Prime 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 Prime Contractor or the Prime Contractor's Subcontractors or Sub -subcontractors; and Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 constriction. (b) The Prime Contractor shall give notices and comply with applicable laws, ordinances, riles, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall fiurnish 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 and conspicuously: "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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 of Denton Fire Department regulations. The Prime 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 Prime 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 Prime Contractor of any responsibility for damage resulting from any blasting operations. (f) The Prime 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 Prime 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 Prime 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 Prime Contractor or any of its Subcontractors. The foregoing obligations of the Prime Contractor are in addition to the Prime 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 Prime 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 Prime Contractor shall designate a responsible member of the Prime Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Prime Contractor's superintendent unless otherwise designated by the Prime Contractor in writing to the Owner and Architect/Engineer. (h) The Prime 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 Prime Contractor shall act, at the Prime Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Prime 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 Prime 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 constriction Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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 Prime 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 Prime Contractor's neglect shall be deducted from the Contract Sum. The Prime 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 Prime 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 Prime Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Prime 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 Prime Contractor shall, at the Prime 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 Prime 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 Prime 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 Prime Contractor at Prime Contractor's cost and expense. The Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime 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 Prime Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Prime Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Prime 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 Prime Contractor shall provide and maintain, at the Prime Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Prime Contractor shall, at the Prime 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 Prime Contractor desires to use the Owner's water in connection with the Work, the Prime Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Prime 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 Prime 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 Prime Contractor shall pay for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Prime Contractor through the City of Denton. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 10.9 USE OF FIRE HYDRANTS The Prime 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 Prime 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, riles, regulations, ordinances, or riles 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 Prime 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 Prime 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 Prime Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Prime Contractor or any of its Subcontractors, the Prime Contractor shall be responsible for remediating the condition at the sole expense of the Prime Contractor in accordance with the Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (c) The Prime 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 Prime Contractor or any Subcontractor or Supplier. The Prime 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 Prime Contractor's sole responsibility to comply with all applicable laws, riles, 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 Prime 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, riles, and regulations. The SPRP shall be specially designed for the Prime 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 strictures 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 Prime Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional riles shall apply with respect to spills caused by the Prime Contractor or a Subcontractor: (1) The Prime 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 Prime Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Prime Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Prime 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, riles, or regulations. In connection with such disposals, the Prime 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 Prime 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 PRIME CONTRACTOR. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Prime 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 Prime 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 Prime 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, riles, regulations, and ordinances. The Prime 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 Prime Contractor's records for reference purposes, to be provided upon request to the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. (g) The Prime Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for constriction 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 constriction 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 Prime 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 Prime 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 Prime 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, rile, regulation, or ordinance: Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime Contractor and approved by the Owner; (2) if the Prime Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Prime 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 PRIME CONTRACTOR'S INSURANCE Prime 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 Prime 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. 11.3 `UMBRELLA' LIABILITY INSURANCE Prime 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 Prime 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. 11.5 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.5(b), the Prime 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; Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 each bond shall be signed by the Prime Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.5(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) years 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 fiull 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 $50,000, Payment bonds in 100% of the Contract Sum are mandatory and shall be required to be provided by the Contractor. If the Contract Sum is greater than $100,000, a Payment Bond and Performance Bond in 100% of the Contract amount is mandatory. (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 Prime 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) Contractor will be required to furnish original performance and payment bonds for 100 percent of the total submission price 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, from a surety licensed to do business in the State of Texas. The City, at its option, may waive the payment and performance bond requirements for projects of less than $50,000. Bond forms are attached and shall be returned upon notice of contract award by the City. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from contract award. This contract is not fully executed until payment and performance bonds are received and accepted by the City. Upon approval, a purchase order will be issued. (e) The failure of the Contractor to deliver the required statutory bonds and evidence of insurance within fourteen (14) calendar days after the Contract is awarded shall constitute a material breach of the Prime 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 Prime Contractor's failure to execute and furnish the statutory bonds within fourteen (14) calendar days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.5(e). In the event the Owner should re -advertise for bids, the defaulting Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Prime 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 Prime Contractor a written acceptance or waiver of the defect or nonconformity. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor nor accepted by the Owner. (f) If the Prime 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 Prime 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 Prime Contractor's expense. If the Prime 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 Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 by the Prime 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 Prime Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Prime Contractor then or thereafter are not sufficient to cover the deficiency, the Prime Contractor shall pay the difference to the Owner. (g) The Prime Contractor shall bear the cost of correcting destroyed or damaged constriction of the Owner or separate contractors, whether the constriction is completed or partially completed, that is caused by the Prime 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 Prime 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 Prime 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 Prime Contractor's liability with respect to the Prime 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 Prime Contractor and the Prime Contractor's Surety of the items that require Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor and the Surety. If for any reason the Prime 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 Prime Contractor, including but not limited to the following causes: (1) Failure or refiisal of the Prime 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 Prime Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Prime Contractor to provide sufficient and proper equipment or constriction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Prime 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 refiisal of the Prime 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 constriction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Prime Contractor of litigation against the Owner prior to completion of the Work. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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 Prime Contractor and the surety or its authorized agents, assume the obligations of the Prime Contractor for the Work or that portion of the Work which the Owner has ordered the Prime 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 Prime Contractor's default. In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Prime 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 actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorney's fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Prime 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 Prime Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Prime 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 Prime 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 Prime 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 Prime Contractor and the surety shall be liable to the Owner for any costs incurred in excess Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 of the balance of the Contract Siam 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 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 Prime Contractor, then the Owner may pay to the Prime Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Prime 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 Prime Contractor, then the Prime 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 Prime 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 unconditional right to terminate this Contract for the convenience of the Owner (including but not limited to non -appropriation of fiunding) 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 Prime Contractor. Upon the Prime Contractor's receipt of such written notice, the Prime Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Prime 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 Prime 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 Prime 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 Prime 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; Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 (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 Prime 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 Prime 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 Prime 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 Prime 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 (a) This Contract shall be in all things governed by the laws of the State of Texas without regard to conflict of laws principles. (b) 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, riles and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Prime 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 Prime Contractor shall not assign, Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Prime 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 Prime 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 Prime 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 Prime Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 Prime Contractor is that of an independent contractor. The Prime 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 Prime Contractor an agent, servant, or employee of the Owner, or making the Prime Contractor or any of the Prime 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 Prime Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Prime 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 Prime 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 Prime Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Prime 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 Prime Contractor to remove any employee of the Prime 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 Prime Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Prime Contractor grants the Owner the right to audit, at the Owner's election, all of the Prime Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Prime 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 Prime 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. Prime 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. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 EXHIBIT C PAYMENT AND PERFORMANCE BOND REQUIREMENTS Contractor will be required to furnish original performance and payment bonds for one hundred (100%) percent of the total submission price 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, from a surety licensed to do business in the State of Texas. The City, at its option, may waive the payment and performance bond requirements for projects of less than $50,000. Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from contract award. This contract is not fully executed until payment and performance bonds are received and accepted by the City. Upon approval, a purchase order will be issued. Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 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. Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. Should any of the required insurance be provided tinder 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 tinder 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: Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 • 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. 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. Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 [ ] 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 type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate") -A copy of a certificate of insurance, a certificate of authority to self -insure issued by the commission, or a coverage agreement (TWCC- 81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner -operators, employees of any such entity, or employees of any entity which fiurnishes 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: 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 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the diaration 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; Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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. Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 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 : l'itlps://www.ethics.state.tx.us/whatsnew/elf info f6rm1295.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 purchasing (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 4 6450 DocuSign Envelope ID: B8305457-217F-470E-81 E2-1 D34B1 D78416 EXHIBIT 5 EXHIBIT F CONTRACTORSPROPOSAL Contract 4 6450 DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 Kraftsman mmibm wrr+ COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 LO IDenton, City of 'a Ijim Mays (X IDenton Splash Park - Gene Young Park E Quote #Q56955 Page: 1 Date: 5/25/2017 Project: 15260 By: Pat Kennedy Vendor #1009200 SplashPark Proposal Drawing W13949 Ver 1, Opt B dated 3.01.16 Based on design for Project #15260, by Water Odyssey drawing #W13949.1.B; dated 3-01-16 1 ( C001 ( ColorCastTM Spin Flower with Magic 27,986.00I 27,986.00I FIowTM stainless steel jet streams By Water Odyssey 1 ( W004C ( Daddy Long LegsTM, Water 5 to 9 ( 3,132.00I 3,132.00I Conserving. By: Water Odyssey. 1 ( W036C ( Baby Long LegsTM, Water Conserving. 3 ( 1,464.00I 1,464.00I By: Water Odyssey. 1 ( W040 -ST ( Water Web TM with Wired Activator 8-16 ( 6,454.00I 6,454.00I Button. By: Water Odyssey. 1 ( W085 ( Splash-O-LatorTM. By: Water 7 ( 1,628.00I 1,628.00I Odyssey. 1 ( W093 ( Water Weave TM. By: Water Odyssey. ( 14 ( 3,802.00I 3,802.00I 2 ( W280 ( Popp DroppTM By: Water Odyssey. ( 3 ( 1,464.00I 2,928.00I Approx. Total Flow Rate: 79 GPM 1 ( WMF-08P ( Water distribution Manifold, Flanged 13,459.00I 13,459.00I 4" Stainless Steel Manifold for Wall Mount Installation w/pressure gauge, drain valve, water hammer arrestor, (2) Full Flanged 4"S inlet connections; (8) discharge assemblies each w/(1) true union ball valve and (1) 24VAC glass filled plastic solenoid valve. NOTE: Water pressure to the manifold must not exceed 50 psi. The installer must ensure this requirement is met. By 1 ( DSC -8-16 ( Dynamic Sequence Controller with 8 8,550.00I 8,550.00I hard -wired inputs and 16 outputs mounted in a NEMA4X housing. By: Water Odyssey. DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 1 ( DISCBB ( Discount on BuyBoard Purchase, BuyBoard Contract #512-16 Quote #Q56955 Page: 2 Date: 5/25/2017 Project 15260 By: Pat Kennedy -24,291.001 -24,291.001 4 ( 860-6PNV ( Floor Drain, Fat Max, 9" dia. top, nickel ( 475.001 1,900.001 solid nickel top grate, 6" Sch 40 outlet, PVC body, Vandal proof screws, by Sioux Chief 1 ( AKWFS100 (Aquakraft Water Filtration System - 18,500.001 18,500.001 100 GPM 1 ( ENCLOSURE ( Filtration System Enclosure, 16'x16'. 17,300.001 17,300.001 Eave Height 8'. Vinyl Coated Chain Link with Metal Cover, Gable Ends. Concrete Slab for enclosure not included. (see Line Item below) 1 ( Concrete Pad for Enclosure ( 16x16 ( 2,100.001 2,100.001 1 ( WRHT3 ( Water Reservoir Holding Tank, 3000 31,50 18,200.001 18,200.001 Concrete with epoxy coated interior, Galllon 0 with access lid and hatch; 11/2" Automatic fill valve with wall penetration; overflow and all penetrations as required by project design. 3000 Gallon; by AquaKraft 1 ( ECP-113-5SP ( ECP -UV Sanitization system with 3" 3" ( 18,111.001 18,111.001 flange connection for Flow rates up to 260 GPM. Complete validated system with Sanitation Chamber, Control Panel includes Audible Alarm. Requires a 220V 1 Phase circuit breaker. By AquaKraft 1 ( VALVE ( Rain Water Diverter Valve ( 10,000.001 10,000.001 1590 ( SPLASH DECK ( Spray Play Pad, 5" thick concrete pad 1 sqft ( 12.751 20,272.501 with slope to drains, rebar reinforced, light broom finished to help prevent the possibility of slippage (no coloring or top coat), By: Kraftsman 1 ( SITE PREP ( Site preparation for Splash Deck and 4,000.001 4,000.001 piping 1 ( MOBILIZATIO Mobilization for SplashPark or Park 5,000.001 5,000.001 N area construction. By: Kraftsman 1 ( INSURANCE- Name customer as additional insured 1,200.001 1,200.001 AI on General Liability Policy and processing of coverage. 1 ( BOND1 ( Performance & Payment Surety Bond, 6,628.151 6,628.151 and processing of the bond documentation. DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subtotal: $168,323.65 Shipping & Handling:�$7�87�1 92 Equipment Subtotal: $17'6','19'5'.'57' Tax: ........................................ ..,, .,...$0'.'00' Install: $75,898.40 Total: 093.97 $252,3 DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Special Terms and Conditions Quote #Q56955 Subject: Buy Board Date: S/23/2017 Proposal is submitted with applicable discounts per Buy Board program to reflect established discounts. Subject: Utilities Date: Customer is to plan, permit, and provide installation of utilities as follows (Kraftsman has not included costs for required improvements to utilities to support the SplashPark): • Electrical service, panel, and connection of electrical service to filtration pump motor starters, UV system (if applicable), chemical controller, and feature Dynamic Sequence Controller. Service is to be 240V, 3 Phase, 100 amp, for pumps and control systems, utility plugs and needed lighting if required. Kraftsman will complete all low voltage connections between control systems and valve manifolds. Electrical Bonding of all features, reinforcing steel, and filtration equipment per code requirements. City water meter with approved backflow preventer and water line connection to equipment area. A 1.5" water line is to be provided (the minimum water supply to system is to be 75 GPM, with a minimum of 35 PSI). Kraftsman will supply automated water fill control system. • Proper drain line to within 5' of edge of filtration equipment area for backwash discharge from filters and overflow from holding tank. Minimum of 8" size is to be provided. • Storm drain line to within 5' of holding for overflow. Kraftsman will connect drain boxes from SplashDeck to holding tank. Utility leads and required facility improvements are to be completed and ready for connection of new improvements prior to Kraftsman coming on site for construction of the SplashPark improvements. Subject: Credit Card Terms Date: If paying by American Express, there is a 6% processing fee charge. If paying by Visa or Master Card, there is a 4% processing fee charge. Subject: Bonding Date: Performance and Payment bonds are included in this quote and will be provided after a signed quote or contract is returned to Kraftsman. Maintenance Bonds are not included. Subject: Building Permits Date: • Building permits are not included or provided. • Engineer stamped plans for concrete and filtration are included. • Submittals and reviews for State of Texas ADA compliance and inspections are not included. Additional charges will apply if these services are provided and / or required for completion of the project. Subject: Site Work Date: • Proper/Positive drainage of the area is to be completed by others prior to start of construction by Kraftsman. • Preparation and submittal of SWPPP (Storm Water Pollution Prevention Plan) is not included. DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subject: Locating for Underground Utilities Date: • Kraftsman will call and arrange for utility locating with the public utilities stake out providers. All Public Utilities, including Phone, Electrical, Gas, Cable, and Fiber Optics are to be staked prior to installation. Kraftsman will arrange with Public Utility Stake Out providers for a date that this is to be completed prior to Kraftsman arriving on site. • Customer is to locate, mark, and provide information for all privately owned utilities that are not marked by the Public Utility providers, for all utility service lines below grade that are privately owned. These will include any and all of the following: electrical, water lines, gas lines, irrigation lines, sewer and storm lines, cable service lines, fiber optic or other IT lines, which are privately owned by the property owner. • Kraftsman is not responsible for any underground utilities which are not marked or located by the owner or public utilities stake out providers. Damages to underground utilities for electrical, water, irrigation, and other listed above will not be repaired by Kraftsman and will be the owner's expense and responsibility. Subject: Items Not Included Date: • Finish landscaping, sodding or seeding of disturbed areas. All disturbed areas to be leveled and raked out. • Concrete SplashDeck surfacing. • Concrete lead walks or adjoining observation concrete deck areas. • Shade systems or site amenities. • Site usage signage for use instructions, rules, safety, or emergency notifications as needed or required. • SplashDeck top surfacing for slip resistance, colorization, or fall absorbency. SplashDeck shall be Medium Broom Finished concrete for slip resistance. • Temporary security fence during construction. • Storm Water Pollution Controls for project site. • Safety wash station for chemical use area in filtration equipment enclosure if required. Subject: Insurance Terms Date: Kraftsman will supply a certificate of insurance verifying the limits of coverage. See terms page for details and charges for naming additional insured parties or adding special coverage's if required. Subject: Sales Tax Date: Sales tax is not included in prices quoted. Customer is to supply Sales Tax Exemption or Sales Tax Resale certificate at time of acceptance of proposal, or sales tax will be added to final contract and invoicing for the project. Subject: Installation Date: Installation quoted includes: Installation of SplashPark feature foundations, setting features, water supply piping to features from manifold (manifold is to be located within 50' of SplashDeck), connections between activators and controller, drain lines to edge of pad, per standard Kraftsman construction techniques. Installation price does not include concrete pad or surfacing. Subject: Filtration Spec: High Rate Sand Filtration Date: Pumping, Filtration, and Water Treatment System, self -priming pump with integral large capacity clear top strainer; high rate sand filters with manual backwash valve, connected to Play Feature manifolds, pressure relief "dump" valve connected to holding tank. Chemtrol CH250 Chemical Controller with auto safety shutdown, Liquid Muriatic Acid pH treatment system and Liquid chlorine treatment system. Dynamic Sequencing Controller connected to feature valves, and motor starter. Subject: Start Up & System Training Date: Service includes one day of technical support personnel on site to assist with balancing of features, system start up, and 4 hours of staff operations traininq. DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 Quote #Q56955 Subject: Project Completion Date: Allow 4 to 8 weeks for preparation of plans, drawings, and submittals after acceptance of proposal. Shipping date of equipment from factory will be approximately 6 to 10 weeks after approval of submittal documentation, provided that the following has been completed and approved by the customer: • Project product submittals reviewed, approved and returned. • Completed Color selection sheet (signed and dated) • Physical project address • All contact names and phone numbers • Exemption certificate • Deposit per contract Allow adequate time for processing and procuring construction permits if required. Allow approximately 10 to 16 weeks for project completion upon equipment delivery from manufacturer, issuance of building permits if required, weather permitting. Subject: Delivery and Unloading Date: Kraftsman is responsible for insuring that adequate staff and equipment resources are available for timely off-loading, safe handling, and secure storage of equipment upon receipt from motor freight carrier of installed product shipments. Unloading of materials from the truck will potentially require material handling equipment, i.e. forklift, pallet jack(s), to properly remove equipment from the delivery truck. In Most Cases when Kraftsman is installing a project the product will be received at Kraftsman's Warehouse and stored until needed on the project. Then transported to the site at the time of installation. Subject: Monthly Progress Billings Date: All work completed and Materials stored as of the last day of the month shall be billed on or before the 25th of said month. Pavments to be received by the 15th of the following month. Shipping & Handling: DocuSign Envelope ID B8305457 -217F -470E-81 E2-1 D34B 1 D78416 Kraftsman mmiwF5 COMMERCIAL PLAYGROUNDS & WATER PARKS 19535 Haude Road 1 Spring TX 77388 Phone: 281-353-9599 Fax: 281-353-2265 General Terms and Conditions Sold To: Denton, City of Terms: Percentage Completed Draws Monthly K.IIIQIIEel 01003y110 Quote #Q56955 Ship To: Denton SplashPark - Gene Young Park 1. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the contract. 2. No returns of merchandise will be accepted unless previously authorized in writing by Kraftsman. All returns are subject to restocking fee of 25% plus freight charges incurred for return to original shipment origination. 3. Title for all equipment is reserved by Kraftsman Commercial Playgrounds and Water Parks until payment in full is received. The right to enter the property and repossess said equipment is hereby granted to Kraftsman Commercial Playgrounds and Water Parks if payment is not rendered in accordance with the terms above. All payments made prior to repossession under this contract shall be forfeited to Kraftsman Commercial Playgrounds and Water Parks as cost incurred to recover the equipment. Repossession of product does not waive any damages or costs due as awarded by the court. 4. All collections or litigation concerning this contract shall be governed by the laws of the State of Texas, with venue in Harris County. 5. Kraftsman warranties the merchandise on this proposal to be up to the manufacturers published standards as to material and workmanship. See catalogs or attached drawings for specific layouts, warranties, and specifications. 6. Kraftsman reserves the right to review contract for final acceptance by management and to make corrections of clerical errors. 7. A service charge of 1.5% per month will be assessed on all past due amounts. 8. Payments to Kraftsman by credit card will incur a processing fee of 4% for Visa and MasterCard, and 6% for American Express. 9. Installation services include all labor, equipment required to complete the job, and insurance coverage's as required by law. Extra installation charges will incur for abnormal sub surfaces, ie. rock, landfill, etc. Price quoted includes Kraftsman's standard insurance coverages of $2 million in General Liability & Completed operations, $1 million in Automobile Liability, $1 million per occurrence/$2 aggregate in Workman's Compensation. Any charges by Kraftsman's insurance carrier or agents for adding General Contractor or Owner as additional insured, waivers of subrogation, or changes to standard coverage shall be added to contract charges. No performance bond or labor and material payment bonds shall be provided by Kraftsman, unless listed as individual line item in proposal. 10. Kraftsman Commercial Playgrounds and Water Parks is not liable for damages to underground utilities, and irrigations systems during installation. It is the customers responsibility to locate all underground utilities. 11. Building permits required by local or state authorities & municipalities are not included and are the responsibility of the owner of the property, unless specifically included as a line item in the proposal. If you want Kraftsman to handle required permitting please contact our office and we will provide a quote if not included as a line item within this proposal. 12. This proposal may be withdrawn by Kraftsman if not accepted within thirty (30) days. Respectfully Submitted: Pat Kennedy Acceptance of Proposal: Date: May 25, 2017 The prices, specification and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. If contract is placed with an attorney for suit or collection through probate, bankruptcy or other legal proceedings, customer agrees to pay all expenses and reasonable attorney fees incurred. Any verbal instructions, agreements, or promises are not valid unless written as part of this contract. Authorized Signature: Printed Name & Title: Authorized Signature: Printed Name & Title: m Date of Acceptance: WE STRONGLY RECOMMEND A RESILIENT FALL SURFACE BE INSTALLED UNDER ALL PLAY & FITNESS EQUIPMENT Thank You! We Appreciate Your Business! DocuSign Envelope ID: B8305457 -217F -470E-81 E2-1 D34B1 D78416 EXHIBIT 5 Exhibit G 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. None 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 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. None 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 filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer selves 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. NONE 4 x I have no Conflict of Interest to disclose. 5 DocuSigned.by: t1n�6"Vl 6/1/2017 F8528E4BFiness with the governmental entity Date Certificate Of Completion Envelope Id: B8305457217F470E81 E21 D34B1 D78416 Subject: Please DocuSign: City Council Contract 6450 Source Envelope: Document Pages: 89 Signatures: 3 Supplemental Document Pages: 0 Initials: 0 Certificate Pages: 6 AutoNav: Enabled Payments: 0 Envelopeld Stamping: Enabled Time Zone: (UTC -06:00) Central Time (US & Canada) Record Tracking Status: Original 6/1/2017 1:53:23 PM Signer Events Karen E. Smith karen.smith@cityofdenton.com Interim Purchasing Manager City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Korey Soderberg Koreys@kppe.com Vice President Kraftsman LP Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 6/1/2017 7:01:21 PM ID:3e2b6c05-3ecc-4dce-a658-563cfcb17f81 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign 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 via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 5 Holder: Karen E. Smith karen.smith@cityofdenton.com Signature = Using IP Address: 129.120.6.150 Docuftned by: 16" 6"tro. J9E.933r8521E49.F'_.. Using IP Address: 67.200.231.50 �rowsned by: 537253914G458409 Using IP Address: 71.91.169.103 Signed using mobile Status: Sent Envelope Originator: Karen E. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com DEWON Legislation Text File #: ID 17-653, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton ("City") finding that a public use and necessity exists to acquire fee simple title to a 0.119 acre tract of land situated in the Eugene Puchalski Survey, Abstract No. 996, in the City of Denton, Denton County, Texas ("Property Interests"), for the public use of expansion, construction, maintenance, and operation of an electrical transmission line, ancillary facilities, and structures; authorizing the City Manager, or his Designee, to acquire the Property Interests by agreement including making all offers required by law; authorizing the use of power of eminent domain to condemn the Property Interests if an agreement cannot be reached; and authorizing the City Attorney, or his Designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funds; making findings; providing a savings clause; and providing an effective date. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton City Hall r 215 E. McKinney Street D :' NTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Denton Municipal Electric CM/ DCM/ ACM: Todd Hileman, City Manager DATE: June 6, 2017 SUBJECT Consider adoption of an ordinance of the City of Denton ("City") finding that a public use and necessity exists to acquire fee simple title to a 0.119 acre tract of land situated in the Eugene Puchalski Survey, Abstract No. 996, in the City of Denton, Denton County, Texas ("Property Interests"), for the public use of expansion, construction, maintenance, and operation of an electrical transmission line, ancillary facilities, and structures; authorizing the City Manager, or his Designee, to acquire the Property Interests by agreement including making all offers required by law; authorizing the use of power of eminent domain to condemn the Property Interests if an agreement cannot be reached; and authorizing the City Attorney, or his Designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funds; making findings; providing a savings clause; and providing an effective date. BACKGROUND The Denton Municipal Electric (DME) Capital Improvement Plan includes a project to reconstruct Hickory Substation. The existing station capacity is inadequate for expected future load. DME held an open house on September 30, 2014 to inform the community regarding the siting of the proposed substation sites and received feedback A public hearing was held by the Public Utilities Board on November 10, 2014 where input from members of the public was heard. The Board directed DME at that meeting to move forward with the selected option. Another public hearing was held by the City Council on December 2, 2014 where input from the members of the public were heard. The Council directed DME to move forward with the selected option. An aesthetics committee was formed to assist in the determination of the construction of the Hickory Substation. The Public Utilities Board and Council agreed that a Gas Insulated Substation (GIS) and wall would be the best option for the area in which the substation will be constructed. In order to construct the GIS Substation, the subject property above will need to be acquired for transmission line in to and out of the substation. OPTIONS 1. Approve adoption of an ordinance to acquire the above subject property. 2. Do not approve adoption of the ordinance and provide staff with further direction. 3. Table the matter for future action. RECOMMENDATION DME staff recommends approving adoption of the ordinance to acquire the subject property for the City of Denton. PRIOR ACTION/REVIEW (Council, Boards, Commissions) • 9/30/14 — Public Open House • 11/10/14 —PUB Public Hearing in which the site was selected • 12/2/14 — City Council Public Hearing in which the site was approved • 6/13/16 —PUB closed session in which GIS and wall was recommended • 6/21/16 — City Council closed session in which GIS and wall was approved 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 1. Agenda Information Sheet 2. Ordinance 3. Map 4. Motion 5. Appraisal 6. Presentation Respectfully submitted: Phil Williams General Manager Prepared by: Elizabeth Bell Denton Municipal Electric S11,ega1\Our Documents\Ordinances\17\1 Iickory to Locust TI. FD Ord inancc. doex ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE FEE SIMPLE TITLE TO A 0.119 ACRE TRACT OF LAND SITUATED IN THE EUGENE PUCHALSKI SURVEY, ABSTRACT NO. 996, CITY OF DENTON, DENTON COUNTY, TEXAS ("PROPERTY INTERESTS"), FOR THE PUBLIC USE OF, EXPANSION, CONSTRUCTION, MAINTENANCE, AND OPERATION OF AN ELECTRIC TRANSMISSION LINE, ANCILLARY FACILITIES AND STRUCTURES; AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO ACQUIRE THE PROPERTY INTERESTS BY AGREEMENT INCLUDING MAKING ALL OFFERS REQUIRED BY LAW; 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 HIS DESIGNEE, TO FILE EMINENT DOMAIN PROCEEDINGS IF NECESSARY; AUTHORIZING THE EXPENDITURE OF FUNDING; MAKINGS FINDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton ("City Council") after consideration of this matter, has determined that a public use and necessity exists for, and that the public welfare and convenience requires, the acquisition of the Property Interests by the City of Denton, Texas ("City"). The City Council finds that the acquisition of the Property Interests is a valid public use necessary for the expansion, construction, maintenance, and operation of an electric transmission line, ancillary facilities and structures to serve the public and citizens of the City; and WHEREAS, the City is required to make an initial offer as defined by, and in compliance with, Texas Property Code §21.0111 ("Initial Offer"), and a bona fide offer, as defined by, and in compliance with, Texas Property Code §21.0113 ("Final Offer") to acquire the Property Interests for public use, voluntarily, from the subject landowner before beginning the acquisition of the Property Interests by eminent domain; and WHEREAS, an independent professional appraisal report of the Property Interests will be submitted to the City as required by Chapter 21 of the Texas Property Code, and the City Manager or his designee will establish a certain amount determined to be just compensation for the Property Interests based on the appraisal and fair market value of the Property Interests and any applicable fees necessary to acquire the Property Interests; and WHEREAS, the City Council deems it necessary to authorize the City Attorney to initiate condemnation proceedings in order to acquire the Property Interests if an agreement cannot be reached with the subject landowner for the purchase of the Property Interests. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON ORDAINS: Section 1. The City Council finds that the recitals made in the preamble of this Ordinance are true and correct, and incorporates such recitals into the body of this ordinance as if copied in their entirety. Section 2. The City Council authorizes acquisition of the Property Interests, as more particularly described and depicted in Exhibit "A" attached hereto and incorporated herein, for the reasons and purposes set forth above together with all necessary electric transmission line related appurtenances, additions and improvements on, over, under, and through the Property Interests. Section 3. The City Council authorizes the City Attorney, or his designee, to negotiate for and to acquire the required property rights in the Property Interests for the City, and to acquire these rights in compliance with State and any other applicable law. The City Attorney, or designee, is specifically authorized and directed to do each and every act necessary to acquire the needed property rights in the Property Interests including, but not limited to, the authority to negotiate, give notices, make written offers to purchase, prepare contracts and conveyance documents, to retain and designate a qualified appraiser of the Property Interests to be acquired and any other experts or consultants that he deems necessary for the acquisition process, to retain qualified outside litigation counsel as needed, and, if necessary, to institute and conduct all parts of the proceedings in eminent domain in accordance with the laws and procedures of the State. Section 4. The City Manager, or his designee, is appointed as negotiator for the acquisition of the needed Property Interests and, as such, the City Manager, or designee, is authorized and directed to do each and every act and deed specified or authorized by this Ordinance, subject to the availability of funds appropriated by the City Council for such purpose. The City Manager, or designee, is specifically authorized to establish and make offer(s) of just compensation for the acquisition of the Property Interests to the landowner(s) of the Property Interests in accordance with State and any other applicable law. If an agreement as to damages or compensation cannot be reached then the City Attorney, or designee, is authorized and directed to file or cause to be filed, against the subject landowner and interested parties of the Property Interests, proceedings in eminent domain to acquire the Property Interests. Section 5. It is the intent of the City Council that this Ordinance authorize the condemnation of all property required for the expansion, construction, maintenance, and operation of an electric transmission line, ancillary facilities and structures. This property is generally located at the northwest corner of Bonnie Brae Street and Oak Street, Denton, Denton County, Texas. Section 6. If it is determined that there are scrivener errors in the descriptions contained herein or if later surveys contain more accurate revised descriptions, the City Attorney or his designee is authorized to have such errors corrected or revisions made without the necessity of obtaining a new City Council Ordinance authorizing condemnation of the corrected or revised property. Section 7. In the event that Special Commissioners appointed by the Court during condemnation proceedings return an award that is the same amount or less than the amount offered by the City for just compensation, the City Attorney is hereby authorized to settle the lawsuit for that amount. Section 8. Following an award by the Special Commissioners, the City Finance Director is hereby authorized to issue a check from the appropriate fund in an amount not to exceed the Special Commissioners' award payable to the County Clerk of Denton County to be deposited in the registry of the Court to enable the City to take possession of the subject property without further action of the City Council. Section 9. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. Section 10. This Ordinance shall become effective immediately upon its passage. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY: 2y X W a o a �; ° oci g:°8m` m k s 02 sS� 9g Z kr i Eh� 32. 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DJ�B ®®OC o � i� I I { , r[ f p t r I f JWI �I r c � p .f qqII�� ,IY� IIS ii ��� 1111111 y,_,, .. .. J! f C:\Users\1983838.CODAD\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\8J4ZPC9R\Hickory to Locust ED Motion.docx MOTION City Council Agenda Item 5.A. ID 17-653 "I move that the City of Denton, after having made the offers required by State law, use the power of eminent domain, if needed, to acquire fee simple to a 0.119 acre tract of land being situated in the Eugene Puchalski Survey, Abstract No. 996, City of 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, construction, maintenance, operation, and improvement of electric transmission lines, facilities, and structures, including substations, to serve the public and citizens of the City of Denton, Texas." A REAL PROPERTY APPRAISAL REPORT OF THE SURFACE ESTATE IN 0.119 ACRES OR 5,181 SQUARE FEET OF LAND BELONGING TO: WESTON PLACE, LTD. Located at the northwest corner of Bonnie Brae Street and Oak Street, Denton, Denton County, Texas 76201 City of Denton, DME Program Management Project #DTN13535, Hickory to Locust TM Line, Parcel: 093 PREPARED FOR: FREESE AND NICHOLS, INC. c/o Mr. Phil Williams General Manager Denton Municipal Electric (DME) 215 E McKinney Street Denton, Texas 76201 EFFECTIVE DATE OF THE APPRAISAL: March 31, 2017 PREPARED BY: GBRIEN REALTY ADVISORS Job No. - 17.1073 (B IIIIIE-IlN REArvAo>vwsays TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS........................................................................ 1 SECTION I — APPRAISAL REPORT............................................................. 2 Scopeof Work..........................................................................4 Competency Rule......................................................................4 Jurisdictional Exception Rule........................................................5 Extraordinary Assumptions...........................................................5 Hypothetical Conditions..............................................................5 Definition of Market Value...........................................................5 Summary of Salient Facts and Conclusions.........................................6 Aerial....................................................................................7 Dateof the Report.....................................................................8 Effective Date of Appraisal...........................................................8 Purpose and Property Rights Appraised............................................8 Identity of the Client and Intended Users of the Report ........................8 Intended Use of the Appraisal.......................................................8 Statement of Ownership, Sales History and Status...............................8 Market Area Analysis..................................................................9 Demand Generators Map............................................................ 14 SiteAnalysis.......................................................................... 17 Highest and Best Use Analysis ..................................................... 21 Market Value Estimate of the Whole Property .................................. 25 SECTION II — EXHIBITS..................................................................... 32 AreaMap.............................................................................. 33 MarketArea Map..................................................................... 34 SubjectAerial........................................................................ 35 DMESurvey........................................................................... 36 Plat.................................................................................... 37 Subject Photos....................................................................... 39 SECTION I II — COMPARABLE SALES ANALYSIS .............................................. 41 SECTION IV — CERTIFICATION OF THE APPRAISAL .......................................... 50 SECTION V — ASSUMPTIONS AND LIMITING CONDITIONS AND DEFINITIONS .................. 53 SECTION VI — QUALIFICATIONS OF THE APPRAISERS ....................................... 61 PARCEL 93 — WESTON PLACE, LTD. PAGE] ( B IIIE-IN REXrYADvisoys SECTION I - APPRAISAL REPORT PARCEL 93 - WEsToN PLA cE, LTD. PACE (B IIIIIE-IlN REXrvAo>vwsoys April 18, 2017 SEcTloNI-APPRAISAL REPORT 01BRIEN REALTY ADVISORS, LLC REAL. iEsr .rir CGNSUi...r iKrs i."t iRPII ii&DIS 3208 COLLINSWORTH STREET FORT WORTH, TEXAS 76107 FREESE AND NICHOLS, INC. c/o Mr. Phil Williams General Manager Denton Municipal Electric (DME) 215 E McKinney Street Denton, Texas 76201 SUBJECT: 0.119 Acres or 5,181 Square Feet of Land Located at the northwest corner of Bonnie Brae Street and Oak Street, Denton, Denton County, Texas 76201 Dear Mr. Williams: O'Brien Realty Advisors, LLC is pleased to present this appraisal report that was prepared on the above referenced property. The purpose of this appraisal is to derive an opinion of the market value of the subject property, as of March 31, 2017, the effective date of the appraisal. The report has been prepared in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP), The State of Texas, and the Standards of Professional Practice of the Appraisal Institute. Our opinion of market value is premised upon the Assumptions and Limiting Conditions outlined herein. The definition of market value may be found in Sections I and V. PARCEL 93 — WESTow PLA cE, LTD. PACE 3 (B IIIIIE-IlN REXrvAo>vwsays SCOPE OF WORK SEcT1oNI-APPRAISAL REPORT As part of this appraisal, we have completed the following steps to gather, confirm, and analyze the data. ❖ Mark R. Sadler, Mike C. O'Brien and Gina Cannova Phalen physically inspected the subject and the surrounding market area on March 7, 2017, and Mark Sadler inspected it again on March 31, 2017. The appraisers afforded the property owner, Craig Irwin, the opportunity to accompany us during the inspection; that Mr. Irwin allowed us to inspect the property unaccompanied. The inspection of the property is limited to those things readily observable without the use of special testing or equipment. ❖ Collected factual information about the subject and the surrounding market area and confirmed that information with various sources. ❖ Performed a highest and best use analysis of the subject site as vacant and as improved when applicable. ❖ Gathered market information on comparable sales. The comparable information was confirmed with at least one of the parties to the transaction. ❖ Analyzed market information and developed indications of value under the necessary approaches to value for a credible assignment result. • The appraisal of real estate typically employs three traditional valuation methods: the sales comparison approach, cost approach, and income approach. Only the sales comparison approach ([and only) was used in this analysis. ❖ Prepared an appraisal report summarizing our analyses, opinions and conclusions. COMPETENCY RULE We have the knowledge and experience of appraising similar type properties located within the subject's market area, and applying the approaches to value utilized; therefore, we are able to complete this assignment competently. PARCEL 93 - WESToN PLA cE, LTD. PACE 4 (B IIIIIE-IlN REArvAo>vwsays JURISDICTIONAL EXCEPTION RULE SEcT1oNI-APPRAISAL REPORT If any part of the Uniform Standards of Professional Appraisal Practice is contrary to the law or public policy of any jurisdiction, only that part shall be void and of no force or effect in that jurisdiction. EXTRAORDINARY ASSUMPTIONS An extraordinary assumption is an assumption, directly related to a specific assignment, which, if found to be false, could alter the appraiser's opinions or conclusions. Extraordinary assumptions are specific to the assignment, as opposed to general assumptions, which could be applicable to any assignment. In this assignment, we have assumed typical general assumptions and limiting conditions as cited later in this report. HYPOTHETICAL CONDITIONS A hypothetical condition is "that which is contrary to what exists but is supposed for the purpose of analysis." In the State of Texas, appraisal reports prepared for eminent domain purposes may recognize one or more hypothetical conditions. For example, the appraisal of a remainder property assumes that the proposed public or private improvements were complete as of the effective date of valuation, when in fact it is known that they are not. The use of hypothetical conditions derived from public policy and case law does not result in a process that is limited or renders the results no longer credible. No additional hypothetical conditions were used in this appraisal assignment. DEFINITION OF MARKET VALUE "Market value," as used herein, is defined as: ...the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future. City of Austin v. Cannizzo, et at, 153 Tex. 324, 267 S.W.2d 808 (Tex. 1954). PARCEL 93 — WESToN PLA cE, LTD. PACE 5 Legal Descriptions The subject is legally described as all that certain 0.121 acre tract situated in the Eugene Puchalski Survey, Abstract No. 996, an addition to the City of Denton, Denton County, Texas. Owner of Record Property Tax Number(s) Weston Place, Ltd. 525 S. Carroll Blvd, Suite 100 Denton, TX 76201-7416 179485 Effective Date of the Appraisal March 31, 2017 Date of the Report April 18, 2017 Land Area 5,181 square feet or 0.119 acres Improvements According to our inspection and Denton Central Appraisal District, the subject is currently vacant. Highest and Best Use Assemblage Estimated Exposure Time 6 - 12 months Property Rights Appraised Fee simple estate (Surface Estate Only) Indicated Market Value $22,019 or $4.25 per SF (Land Only) PARCEL 93 — WEsTON PLACE, LTD. PACE 6 ( B 1R lllllE-IN REArvAo>vwsoys ,SECTIONI—APPRAISAL REPORT AERIAL Source: GoogleEarth © 2016 LOCATION OF BOUNDARY IS APPROXIMATE ** Given the size and shape of the site, independent development of the site would be difficult, if not impossible. Therefore, the subject property is considered a non- economic unit. A non -economic unit is a tract of land that does not have the required physical features to have value as an independent parcel. Usually, the only way to recover any value of these parcels is to assemble with adjoining parcels of land. Because assemblage is the highest and best use, the market appeal is virtually non-existent. Although an adjacent owner may be able to use the property, they may have no necessity for it. In either case, the property owner would have a parcel that is not as marketable to the public. The subject's highest and best use would be for assemblage with the adjoining 12,719 square foot parcel for multi -family residential use. Therefore, this adjoining tract to the west is considered the "parent tract" used for comparison. The value of the subject property is derived from taking the concluded unit value for the parent tract ($17.00 per SF) and applying a non -economic unit discount ($17.00 per SF x 25% = $4.25). PARCEL 93 — WESToN PLA cE, LTD. PACE 7 (B IIIIIE-IlN REXrvAo>vwsays DATE OF THE REPORT The date of the report is April 18, 2017. EFFECTIVE DATE OF APPRAISAL SEcT1oNI-APPRAISAL REPORT The effective date of this appraisal (value) is March 31, 2017. PURPOSE AND PROPERTY RIGHTS APPRAISED The purpose of this appraisal is to derive an opinion of market value of the subject, as of March 31, 2017, the effective date of the appraisal. The surface estate has been appraised. IDENTITY OF THE CLIENT AND INTENDED USERS OF THE REPORT The client is Freese and Nichols, Inc., and the intended users are Freese and Nichols, Inc.; Denton Municipal Electric (DME); 7 Arrows Land Staff, LLC; and their agents, representatives and assigns. INTENDED USE OF THE APPRAISAL This appraisal report has been prepared for Freese and Nichols, Inc.; DME; 7 Arrows Land Staff, LLC; and their assigns, for assistance in right-of-way negotiations and eminent domain proceedings, if necessary. STATEMENT OF OWNERSHIP, SALES HISTORY AND STATUS According to the Uniform Standards of Professional Appraisal Practice (USPAP), the appraisers are required to discuss and analyze any previous sales of the subject property within the previous three years for all properties. According to public records, the subject is currently owned by Weston Place, Ltd.. University Place, L.P. conveyed the property to Weston Place, Ltd. on November 17, 2003 as recorded in General Warranty Deed 2004-2471 in Denton County Real Property Records. No sales have been recorded in the previous three years. The property does not currently appear to be listed for sale, and the appraisers are not aware of any options or contracts on the property. PARCEL 93 — WEsToN PLA cE, LTD. PACE 8 ( B 1R lllllE-IN REXrvAo>vwsoys ,SECTIONI—APPRAISAL REPORT MARKET AREA ANALYSIS A neighborhood is typically a segment of a community, city or town, which is a homogeneous grouping of individuals, buildings, or business enterprises within the larger community. A neighborhood has three stages of life and possibly a fourth. They are: (1) growth, (2) stability, (3) decline, and (4) revitalization and continuance of the neighborhood life cycle. Principal factors which improve neighborhood values are good schools, churches, rural residential facilities, homogeneity and civic responsibility, prestige and visual appeal, satisfactory transportation affording good ingress and egress, good planning, adequate utilities, conformity in land use, sensible zoning, and topographical and geographical advantages. Some factors which reduce neighborhood values are: the tendency of inhabitants to think the neighborhood is losing its desirability, movement of undesirable uses into the area, lack of zoning protection, increasing taxes, reduced rental rates and values of surrounding properties, lack of adequate planning, community pride, and nuisances. The book entitled Real Estate Appraisal Terminology defines a neighborhood as: A portion of a larger community or an entire community in which there is a homogeneous grouping of inhabitants, buildings or business enterprises. Inhabitants of a neighborhood usually have more than a casual community of interest. Neighborhood boundaries may consist of well-defined natural or man- made barriers or they may be more or less well defined by a distinct change in land use or in the character of the inhabitants. The subject is located in central Denton County, in the City of Denton, Texas. The neighborhood is largely influenced by a mix of commercial, industrial, institutional and residential uses. The City of Denton encompasses a landmass of 97 miles and has a population of approximately 119,000. It's located approximately 35 miles north of Dallas and Fort Worth and is centrally located within the country (you can reach 98% of the US population within 48 hours by vehicle). ACCESS AND LINKAGES IH -35, whose eastern and western segments intersect in the City of Denton, run through Dallas (IH -35E) and Fort Worth (IH -35W) to the south and continue past the Texas/Oklahoma border to the north. Other major thoroughfares in the area are Loop 288 and University Drive. The DFW Airport, the region's largest international airport, is approximately 22 miles to the south. Access to Denton is good with IH -35 and US Highway 377 providing north/south travel and University Drive and US Highway 380 providing east/west travel. PARCEL 93 - WESToN PLA cE, LTD. PAGE 9 (F IIIIIE-IlN REXrvAo>vwsays SEcT1oNI-APPRAISAL REPORT Source: City of Denton EMPLOYMENT The primary employment centers for the people living in the subject's neighborhood are located in the larger DFW Metroplex area. According to the Dallas Business Journal Book of Lists 2016, the major employers for North Texas are as follows: PARCEL 93 — WEsToN PLA cE, LTD. PACE 10 Wal-Mart 34,000 American Airlines Group 27,000 Texas Health Resources 22,296 Dallas Independent School 19,740 Baylor Scott Et White Health 16,500 Lockheed Martin Aeronautics 13,750 Bank of America 13,500 City of Dallas 13,336 UT Southwestern Medical 13,018 Texas Instruments Inc. 13,000 JPMorgan Chase Bank 12,676 PARCEL 93 — WEsToN PLA cE, LTD. PACE 10 (B III IIE-IlNI REXrvAo>vwsays SEcT1oNI-APPRAISAL REPORT The City of Denton also has many large employers - mostly in the industrial, health care and education fields. According to the Denton Economic Development Partnership, the top major employers for Denton are as follows: University of North Texas 8,738 Denton ISD 4,417 Peterbilt Motors 2,314 Denton State Supported Living Ctr 1,700 Texas Women's University 1,672 Denton County 1,581 City of Denton 1, 383 FEMA 594-1,100 (varies) Denton Regional Medical Ctr 950 Sally Beauty Company, Inc. 950 Safran Electrical Et Power 830 DEMAND GENERATORS Retail - Rayzor Ranch is a major mixed-use development that is planned to ultimately include more than 582,000 square feet of retail and commercial space. Stores in the development include Academy Sports and Outdoors, Kohl's, Ross Dress for Less, Famous Footwear, Boot Barn, Petco, Panera Bread, Jo -Ann's Fabric and DK Foot. A 600,000 square foot Rayzor Ranch Town Center are in development and plans include a Cinemark Movie Bistro. Golden Triangle Mall is a major retail center that has had major renovations including adding a food court, interior landscaping, Wi-Fi and many new stores and restaurants. Tenants include Sephora, Buckle, Body Central, PARCEL 93 - WEsToN PLA cE, LTD. PAGE 11 (B IIIIIE-IlN REXrvAo>vwsays SEcT1oNI-APPRAISAL REPORT Charlotte Russe, Tobu Asian Eatery, Italia Express and Smoothie Paradise. Two pad sites for Pollo Tropical and Corner Bakery were also added. Downtown Denton continues to grow with the addition of H Squared, a new apartment complex with ground -floor retail and many new restaurants and bars. The area around the University of North Texas has seen continued apartment activity, with new and redeveloped complexes coming online over the past few years. Business - Denton experienced strong growth in 2015. Not only did four long- time Denton companies expand, but several new companies chose to move to Denton. • An O'Reilly Hotel is developing an Embassy Suites and a 70,000 -square foot convention center in the Rayzor Ranch Town Center. • The Railyard Downtown Project - Rail Yard Partners, Ltd. is renovating an existing 28,000 -square foot building as part of a larger transit - oriented development. The City will lease 9,216 -square feet for a collaborative working space and business incubator. • WinCo Foods - acquired 77 acres on the west side of Western Blvd., just north of Airport Road, to construct an 800,000 -square foot distribution center. This project is projected to create 165 jobs. • Buc-ee's - this "travel center" will be located along 1-35E and will include 53,000 -square feet of retail, fuel sales and a car wash. • Tetra Pak Materials, a manufacturer and distributor of liquid foods, is expanding their current 220,000 square foot facility with an additional 32,000 square foot expansion, including relocating their headquarters from Chicago to Denton. • Air Medical Group Holdings, Inc., a national helicopter ambulance company, plans to begin construction on its new headquarters and hangar near Denton Enterprise Airport - relocating their current headquarters from Lewisville. • Business Air is planning an expansion at the Denton Enterprise Airport with plans to construct a 24,000 square foot hangar with an additional 4,000 square feet of office. PARCEL 93 - WEsToN PLA cE, LTD. PACE 12 (B IIIIIE-IlN REXrvAo>vwsays SECT1oNI-APPRAISAL REPORT Education - City of Denton residents have access to several higher education facilities including the University of North Texas, Texas Woman's University and North Central Texas College. The University of Texas just started construction on a new $70 million College of Visual Arts and Design building that will be a 4 -story and 145,000 square foot complex scheduled for completion by Fall 2018. This addition will give their College of Visual Arts and Design a total complex of 228,000 square feet. Recreation - The city has many parks that provide playground areas, waterparks, walking/bike trails, picnic areas and dog parks. In proximity to the City of Denton is Lake Lewisville. Lake Lewisville is one of the largest lakes in north Texas spanning 29,000 acres with 233 miles of shoreline. This recreational lake allows for fishing, skiing, swimming and recreational boating. There are numerous parks located around the lake. There are plenty of nice beaches, campgrounds, hiking and biking trails, golf courses, and other outdoor activities. Lewisville Lake is operated by the US Corps of Engineers and is a part of the Trinity Regional Project. The Trinity Regional Project is a cluster of seven local lakes: Bardwell, Benbrook, Grapevine, Joe Pool, Lavon, Lewisville and Ray Roberts. Lake Lewisville Sou rce:www. lake- lewisvi Ile. org Sou rce:www. swf-wc. usace. army. mil PARCEL 93 — WESTON PLACE, LTD. PACE 13 (B IIIIIE-IlN RIEXrvADvisoys SEcT1oNI-APPRAISAL REPORT DEMAND GENERATORS MAP Krum Denton Istl Natatorium o � 7 haT"r-- --- r E W ngsgr iii pig RaYzor Ranch --------. 4" V1_ i 110P'Texas Womans Univer 01�-'T ff3 ���- i >/ // Downtown Denton � ��;, � 411111 iT E X N oak St � w-H,dcvry St �non � -- , , � /40111111 - "-(aae i Subject Business Rir Denton E , � IooP Ce �iversity If E Eagle- s / q�ia of North Texas . E N Denton Mu Air Loa lsei Tela Pak, Inc, ".1"�% �Su,.3 MM o Par�1� Denl A' ,. Lake Lewisvlle 5 fIr (2181, ( 'Golder Triangle Mall qfJ [fiolhaou Ln i aaq'1eao, � - Shady Shores i ----- �-�----., 2 1 Corinth PUBLIC SERVICES The area is served by the Denton Independent School District. Electric service is provided by Denton Municipal Electric (DME), the City of Denton provides water and waste services and gas is provided by Atmos Energy. LAND USE Neighborhood land use is primarily commercial, institutional and industrial along major thoroughfares, with residential infill. RESIDENTIAL Residential housing is a mix of single-family (58%) and multi -family (42%) within the City of Denton. Multi -family continues to grow as 361 new units were added in 2015 and 607 new units were added in 2016.' t Statistical Trends and News of Denton, December 2016 PARCEL 93 - WEsToN PLA cE, LTD. PACE 14 ( ')"B 1R lllE-INI IREXryAwsoys SEcTioNI-APPRAISAL REPORT DEMOGRAPHIC FACTORS A demographic profile of the subject, as provided by Site to Do Business, is presented in the following tables: PARCEL 93 — WEsToN PLA cE, LTD. PAGE 15 I inde, 3 infles 5 nnifles Population 0 13,114 4 10,11, 80,857 2010 PIDIPUlatiOn 13,880 56,506 98,210 2016 POPUlatiOn 15,109 60,743 107,150 2021 PUIPLIlation 16,214 65,466 117,005 2000-2010 Annual Rate 0.57% 1.00% 1.96-A 2010-2016 Annual Rate I.37% 1.16% 1.40-/. 2016-2021 Annual Rate 1.42% 1.51 1.78-A 4 Vreie. Li�, ta Wile's PARCEL 93 — WEsToN PLA cE, LTD. PAGE 15 I inde, 3 infles 5 nnifles Population 2000 Population 13,114 51,148 80,857 2010 PIDIPUlatiOn 13,880 56,506 98,210 2016 POPUlatiOn 15,109 60,743 107,150 2021 PUIPLIlation 16,214 65,466 117,005 2000-2010 Annual Rate 0.57% 1.00% 1.96-A 2010-2016 Annual Rate I.37% 1.16% 1.40-/. 2016-2021 Annual Rate 1.42% 1.51 1.78-A PARCEL 93 — WEsToN PLA cE, LTD. PAGE 15 1 rnfle 3 rniies 5 nifles Meclian Household Income 2016 Median Household Incorne $20,136 $31,644 $41,985 2021 Median Household Income $19,952 $30,252 $41,884 2016-2021 Annual Rate -0.18% -0.90-k -0.05% Average Household Income 2016 Average Household Income $35,292 $47,231 $61,173 2021 Average HOLIsehold Income $36,044 $49,790 $65,189 2016-2021 Annual Rate 0.429'. 1.06-k 1.28% PARCEL 93 — WEsToN PLA cE, LTD. PAGE 15 (B IIIIIE-IlN REXrvAo>vwsays OUTLOOK AND CONCLUSIONS SEcT1oNI-APPRAISAL REPORT The market area is in the growth stage of its life cycle. Given the history of the area and the growth trends, it is our opinion that property values will increase gradually, along with the national economy. PARCEL 93 - WEsToN PLA cE, LTD. PACE 16 (B IIIIIE-IlN REXrvAo>vwsays SITE ANALYSIS SEcTtowl-APPRAISAL REPORT An analysis of the property is particularly important in estimating its highest and best use. Following is a discussion of those site characteristics considered most important. PROPERTY LOCATION, SIZE AND SHAPE The subject is a 5,181 square -foot, triangular-shaped tract of land located at the northwest corner of Bonnie Brae Street and Oak Street, Denton, Denton County, Texas LEGAL DESCRIPTION The subject is legally described as all that certain 0.121 acre tract situated in the Eugene Puchalski Survey, Abstract No. 996, an addition to the City of Denton, Denton County, Texas. PROPERTY TAX INFORMATION Real estate tax assessments are estimated by jurisdiction on a county basis for the subject. The subject lies in Denton County. Real estate taxes in this state and this jurisdiction represent ad valorem taxes, meaning a tax applied in proportion to value. State law requires that all real property be revalued at least every three years. The following is a summary of the subject tax account. DENTON COUNTY MARKET AND ASSESSED VALUES 179485 Weston Place, Ltd. 5,271 2016 $ 11,860 $ 2.25 $ $ 11,860 Total 5,271 2016 $ 11,860 $ 2.25 $ $ 11,860 The 2016 composite tax rate for the subject is itemized as follows: Taxing Entity Denton County City of Denton Denton ISD Tax Rate (/$100) 0.248409 0.683340 1.540000 Total 2.47175 It is noted that 2017 values and tax rates have not been released yet. PARCEL 93 - WEsTow PLA cE, LTD. PAGE 17 ( B 1R 111 11 NI REXrvAo>vwsoys ,SECTIONI—APPRAISAL REPORT SITE ACCESS AND FRONTAGE Frontage ±1 foot ±236 feet Paving Asphalt Asphalt Curbs/Gutters Yes Yes Sidewalks Yes Yes Direction of Traffic North/South East/West Condition Average Good Traffic Levels Good Average Signals/Traffic Control Signal at Oak St. Signal at Bonne Brae Access None Average Visibility/Exposure Average Average ENVIRONMENTAL STATEMENT We are unaware of any detrimental environmental conditions that affect the property. For the purposes of our analysis we have estimated the market value of the site as if it is free from any adverse environmental conditions. IMPROVEMENTS According to our inspection, the subject is currently vacant. UTILITIES The following is a summary of the subject's utility service. Water City of Denton Sewer City of Denton Electricity Denton Municipal Electric Natural Gas Atmos Energy Local Telephone Various FLOODPLAIN According to FEMA Map Panel 48121C0360G, dated April 18, 2011, the property appears to be outside of the 500 -year floodplain. Please see "Exhibits" for a floodplain map. TOPOGRAPHY The property is a triangular-shaped tract with generally level terrain and larger trees along the north boundary. PARCEL 93 — WESToN PLA cE, LTD. PAGE 18 (B IIIIIE-IlN REXrvAo>vwsays ZONING SEcT1oNI-APPRAISAL REPORT The subject is located in the City of Denton, Texas and is zoned Downtown University Core with a land use category of DR -2, "Downtown Residential". The purpose of the Downtown University Core District is to "encourage mixed use development within specified commercial areas of the district". This district is a pedestrian friendly district. A zoning map and specific restrictions are presented below. Minimum Lot Area 4,000 SF Minimum Lot Width / Depth 40' / 80' Minimum Residential Unit Size 500 SF Maximum Lot Coverage 75% Maximum Dwelling Units/Acre 30 Front/Rear Setbacks Side Setback adjacent to SF Res. 10' minimum 10' minimum PARCEL 93 - WEsToN PLA cE, LTD. PAGE 19 (B IIIIIE-IlN REXrvAo>vwsays OTHER LEGAL AND REGULATORY CONSTRAINTS SEcT1oNI-APPRAISAL REPORT According to our research and inspection of the property, it appears that the property contains mostly typical perimeter easements. Based on the title report provided by the client, the property is subject to the restrictions shown below: a.. All visible and apparent easements or uses and all underground easements or uses, the existence of which may arise by unrecorded grant or by use. (N -lay be amended or deleted upon approval of current survey.) b. Rights of parties in possession and rights of tenants in possession under any unrecorded leases or rental agreements,. (May be amended or deleted upon execution of affidavit of parties in possession at closing.) c.. All, leases„ grants, exceptions or reservations of coal, lignite, oil, ,gas and other minerals„ together with all rights, privileges, and immunities relating thereto, appearing in the Public Records whether listed in Schedule B or not. There mai° be leases, grants, exceptions or reservations of mineral .interest that are not listed. d. Any encroachments, encumbrances, violatiou, variation or adverse circumstance affecting the title that would be disclosed by an accurate and complete land ,survey of the land. (NOTE:: UPCa:'w RECEIPT OF 3 SURI'E AC'C'EPTABLE Te=a THE COMPANY, THIS EXCEPTION WILL BE DELETED. COMP.�INY RESERVES THE RIGHT TO ADDAD pITICIPrPAL EXCEPTIONS PER ITS EXUMlTsATION OF SAID SURVEY.) The property appears to be encumbered with overhead electric transmission lines along the western boundary. The triangular shape and small size of the property would limit the development potential of the property. PARCEL 93 - WEsToN PLA cE, LTD. PAGE 20 (B IIIIIE-IlN REXrvAo>vwsays HIGHEST AND BEST USE ANALYSIS SEcT1oNI-APPRAISAL REPORT The following summarizes the highest and best use of the property. PROCESS Before a property's value can be concluded, the highest and best use of the property must be determined for both the subject site as though vacant, and for the property as currently improved (if applicable). The highest and best use must be: ❖ Legally permissible under the zoning laws and other restrictions that apply to the site. ❖ Physically possible for the site. ❖ Economically feasible. ❖ Capable of producing the highest net return on investment (i.e. highest value) from among the possible, permissible, and economically feasible uses. AS VACANT LEGALLY PERMISSIBLE The subject is located in the City of Denton and is zoned Downtown University Core with a land use category of DR -2, "Downtown Residential". The appraisers are unaware of any deed restrictions or any further legal limitations on the property which would inhibit the property from being developed to its highest and best use. PHYSICALLY POSSIBLE The size, location, access, frontage, availability of utilities, floodplain characteristics and topography of the site affect the uses to which it can be developed. The subject consists of approximately 5,181 square feet of land and is located at the northwest corner of Bonnie Brae Street and Oak Street. The subject is a triangular-shaped tract of land with generally level terrain. The property is unencumbered by the 500 -year floodplain and has access to all utilities. However, the property's shape, setback requirements and small size would limit development. PARCEL 93 - WEsToN PLA cE, LTD. PACE 21 (B IIIIIE-IlN REXrvAo>vwsays SEcT1oNI-APPRAISAL REPORT In addition, while the appraisers are not aware of any easements on the property, the inspection revealed overhead transmission lines along the western boundary. The clearance area required upon development may further impact the placement of a building along the western side. FINANCIALLY FEASIBLE Proposed development must be financially feasible. Factors that must be considered include surrounding land uses, the supply and demand of the property type, the availability of financing, and the cost of land acquisition and building construction in relation to the property's income producing capacity. Conformity is the appraisal principle that holds that real property values are created and sustained when the characteristics of the property conform to the demands of its current market. The styles and uses of the properties in an area may conform for several reasons, including economic pressures, the shared preference of owners of certain types of structures, amenities and services and the enforcement of uniform standards by means of zoning. Through local zoning ordinances, the government encourages conformity by restricting land use. Standards of conformity are set by the market and PARCEL 93 - WEsToN PLA cE, LTD. PACE 22 (B IIIIIE-IlN REArvAo>vwsays SEcT1oNI—APPRAISAL REPORT are therefore subject to change. Zoning codes, however, tend to establish conformity in basic property characteristics including size, style, and design. A particular market also sets standards of conformity, especially in terms of price. Usually the value of an over improved property will decline, or regress towards the value of surrounding, conforming properties, while the value of an under improved property may increase, or progress towards the prevailing market standards. Based on prevailing market conditions, land use patterns and the physical characteristics of the site, assemblage for multi -family use would appear to be financially feasible. MAXIMALLY PRODUCTIVE There does not appear to be any reasonably probable use of the site that would generate a higher residual land value than assemblage for multi -family use. As IMPROVED According to our inspection and Denton Central Appraisal District, the subject is currently vacant. PARCEL 93 — WEsToN PLA cE, LTD. PACE 23 (B IIIIIE-IlN REXrvAo>vwsays CONCLUSION SEcT1oNI-APPRAISAL REPORT Assemblage for multi -family use is the only use that meets the four tests of highest and best use. Therefore, it is concluded that the subject's highest and best use would be for assemblage with the adjoining 12,719 square foot property for multi -family use. Therefore, this adjoining 12,719 square foot tract to the west is considered the "parent tract" used for comparison. The "parent tract" is legally described as all that certain lot situated in the E. Puchalski Survey, Abstract No. 996, City of Denton, Denton County, Texas. It is also zoned DR -2 and is currently improved with a 56 -year old single-family home. It is the opinion of the appraisers that the highest and best use for the parent tract is for redevelopment as multi -family residential use. Below is an aerial depiction of the parent tract. PARCEL 93 - WEsToN PLA cE, LTD. PACE 24 (B IIIIIE-IlN REXrvAo>vwsays SEcT1oNI-APPRAISAL REPORT MARKET VALUE ESTIMATE OF THE WHOLE PROPERTY We have estimated the value of the whole property, as vacant, by the sales comparison approach. The appraisers have used the Sales Comparison Approach to estimate the value of the subject in the preparation of this report. The valuation of the subject does not rely on the Income Capitalization Approach, since there is no periodic economic income benefits associated with the tract under its current use. Also, the Cost Approach to value is not applicable as the site is valued as unimproved. In order to derive an opinion of the market value of the subject land, assuming the property is available for development to its highest and best use, we have assembled sales data for similar properties in the area. After examining available sales data, we have selected the following land sale transactions as most comparable for this analysis. After an adjustment process, which compensates for the significant differences between these sales and the subject, these sales provide an indication of the subject's land value. The identified sale prices have been adjusted to cash -equivalency, when appropriate. At the end of Section III is a Qualitative Adjustment Grid, which provides relevant data and shows the appropriate adjustments. For each element of comparison, each sale is rated as being superior, comparable, or inferior to the subject. In analyzing the individual sales, we have selected the price per square -foot (SF) of land as the operative unit of comparison. This is the unit of comparison most commonly quoted by brokers, sellers, and purchasers when discussing sales transactions and is considered the most relevant for the subject. A presentation of the land sales follows. PARCEL 93 — WEsToN PLA cE, LTD. PACE 25 � \ @ a 9 R « o � « ƒ C9 � co @ � �o 00 > r ¥ ¥ (71a g 00 C� a V1. V1. 2 w b 9 R « o 0 � �o 00 r (71a 00 a a o � I k % k \ 3 o 0 0 0 0 0 0 3-C ` \ ® ` 0 0 x x ® ? @ ƒ _ _ = o 3 o ® ± = x = . .w o ¢/ y @ % 4 x \ � = 4 ± _ 2: C:§\ 4 0 0 0 U ® � 0 / y � ¥ k 0 0 � k C co C: ° ° 0 # \ ® 0 ° u o E u °/# o * 0 0= o o 2 o 2 0 0 / 0 \ -° / J 0 / ® _ ® _ @ § 2 y 2 � k § /: /° 4-J y 2 / 2 4-J /� /ul C �0 /� /§ ? 0 ° 0 < 2 < a < U % J < / < 2 k ul k k k k k k ° ro LU Q f -1 -1 � / - � � / o o % 21 (a k| a n « o Ic m § � .4 N Z O Q V O J N W J Q N W J Qm DC Q a O V E <C- t" N V LIJ D �E Cl 2<�' 00 N LD (D 0 E :FU o ik .01:f m 1=5 CD CO O N o cn C:, 0) 00 — — — 2 2 2 -am -am -am O co Z, (o Co V; �11 * m m m - �5 �5 M M z T 0 CJ 0) cn 40 c- CL CL E E E CL 0_2 c- c- E E E E G) C, C'J a) (fl M CO 0 0 0 cl) 0 0 0 0 co 0 -j 0 cn cn (U O 0 cc NU) U) (1) CXU C, co 0) 0 0 r- m m cu cu :� —7 C14 ;; CL CL E E CL CL CL CL E E E E �G) 0 -0>i �: 0) r-- 4 0 0 0 0 0 0 E < 0 CU C 0 C) CU O 'o 0 CU x LO E (D F, U-) O _0 (D (n -0 -0 2 2 .8 -0 8 -0 -0 2 2 2 Q (D- Cj CO (U CCL cr:-:, (—D r 00 (6 CL CL CL 4� = .= CL CL CL CL :3 , CU CU Lu c c "T C'4 , W W W = 61) 4;; CO E E E 0 0 0 C) E E E U) 0 0 0 0 O -C :3 0 0 U) L) < m cn 0 45 C� (U X Q- 0 a) 0 F LL Q-4,5 < (C) Lo NCD �T Eu 2 2 2 2 O 2 2 .0 & !Z�j � cu (1) - :3(C 70 0 Lo 06 In 40 M M M M CL CL CL CL E E E E CU - - m m m CL 4 C- a- E E E E 19 0 U) 00 00 cu c V) CO 0 0 0 0 C,) 0 0 0 r cn 0 0 0 0 F= 0 C)0 C.4 0) Z-1-- c X(0 C 45 C, NCU T U) M0 —G) CL CL CL CL CL CL CL a- N 'o U) -E o CO E EE E EE E E C/)70— :1 0 0 -26 N c E2 cu N c x (D (0 cu a) a) C:) F3 v w 2 2 2 2 o 2 2 2 is LU (D Cj CU 0 45 C6 jZ� V� oj CL CL CL CL — a- 4 a- a - o C14 :3 LO 40 CO E E E E Cl) E E E E U) cz, CU N0 a) 0 0 0 0 0 0 0 0 0 0 0 CU _j N cn N -se a) -I-- m �: —0 - 0 CU 0)— (0 a) x C 0 M 2 w 0) 0 C14 CO a) . - � 15 o -a x a)Ci CL z .2 cu 0 o 0 0 a) cn 0 U) E m o O U) C) (1) 0 —C = U) c 0 N N cu LL 0 o 2 Cu 0 < -E co co 0 S; o m :3 o 0 D- (D U) 0) a) LL CL LL o > 2 V— 0 0 0 2 Z cn W 0 0 co cr IL N a in r co co U) 00 N ( B 1R lllllE-IN REXrvAo>vwsoys ,SECTIONI—APPRAISAL REPORT OVERVIEW OF ADJUSTMENTS Potential adjustments include the following categories, which typically affect sale prices. For each element of comparison, each sale has been rated as being superior, comparable, or inferior to the subject (see comparison grid on previous page). PROPERTY RIGHTS CONVEYED This adjustment considers the transfer of property rights, such as differences between properties owned in fee simple and in leased fee. FINANCING TERMS This adjustment considers the financing terms of a transaction, as compared to what is typical in the market. CONDITIONS OF SALE This adjustment considers the motivations of either the buyer or the seller in a transaction, e.g., when the comparable contains improvements with contributory value. MARKET CONDITIONS Real estate values normally change over time. This adjustment considers market differences occurring between the effective date of the appraisal and the sale date of the comparable, when values have appreciated or depreciated. LOCATION This adjustment considers the surrounding area influences, adjoining land uses, and overall location within the market area. ACCESS This adjustment considers access to the subject including the availability and amount of road frontage and multiple roadway access. SIZE This adjustment considers size. Typically, smaller sites will bring higher unit sales prices when compared to larger sites with similar characteristics. FUNCTIONAL UTILITY This adjustment considers physical attributes (i.e. water features, tree coverage, flood plain), site configuration, encumbrances, and/or topography. ZONING/UTILITIES This adjustment considers permissible uses under zoning laws and other legal restrictions that apply to a site as well as the availability of utilities. PARCEL 93 — WESToN PLA cE, LTD. PAGE 29 (B IIIIIE-IlN REXrvAo>vwsays SECT1oNI-APPRAISAL REPORT As previously discussed, given the size and shape of the site, independent development of the subject site would be difficult, if not impossible. Therefore, the subject property is considered a non -economic unit. A non -economic unit is a tract of land that does not have the required physical features to have value as an independent parcel. Usually, the only way to recover any value of these parcels is to assemble with adjoining parcels of land. Because assemblage is the highest and best use, the market appeal is virtually non-existent. Although an adjacent owner may be able to use the property, they may have no necessity for it. In either case, the property owner would have a parcel that is not as marketable to the public. The subject's highest and best use is for assemblage with the adjoining 12,719 square foot parcel for multi -family residential use. Therefore, this adjoining tract to the west is considered the "parent tract" used for comparison. The value of the subject property is derived from taking the concluded unit value for the parent tract and applying a non -economic unit discount. The above sales range from $9.18 per SF to $19.06 per SF. These sales are the most comparable to the parent tract in the market area. Based upon on our analysis of the comparables considered above, the appraisers estimate the market value of the parent tract to be $17.00 per SF as of March 31, 2017. The following is a summary of non -economic sales data which is retained in the appraisers work file. 1 1 Dallas, TX 2/8/2007 Triangular shaped tract containing 34,177 SF 75%-80% 2 Fort Worth, TX 5/15/2012 Irregular shaped tract containing 1,439 SF 77%-80% 3 Hurst, TX 3/4/2011 Irregular shaped tract containing 13,666 SF 79% 4 Irving, TX 12/1/2010 Irregular shaped tract containing 24,742 SF 80%-90% 5 Waco, TX 12/10/2013 Triangular shaped tract containing 27,034 SF 90% 6 Dallas, TX 5/27/2012 Irregular shaped tract containing 8,000 SF 98% Based on the preceding, support can be developed for a reasonable discount to the value of the subject. After analysis of this data, and considering the subject property's site characteristics, a discount of 75% appears reasonable ($17.00/SF x 25% _ $4.25/SF). PARCEL 93 - WESTON PLACE, LTD. PACE 30 (B IIIIIE-IlN REXrvAo>vwsays SEcTtowl-APPRAISAL REPORT Given the concluded unit value of $17.00 per square foot for the parent tract, and the 75% non -economic unit discount, a unit value of $4.25 per square foot for the subject property appears reasonable. This equates to an estimated value of $22,019 for the subject in the whole property condition. The following is a summary of the whole property valuation. Whole Property: 5081 SF C $17.00/SF C 25% $ 22,019 TOTAL VALUE AS A UNIT $22,019 Based upon the previously discussed information, it is the opinion of the appraiser that the subject property has an estimated market value, via the Sales Comparison Approach, as of March 31, 2017 of: $22,019 TWENTY—TWO THOUSAND NINETEEN DOLLARS. The appraisers have retained all information regarding this appraisal in the file. Please contact us if we can be of further assistance in this matter. Sincerely, O'BRIEN REALTY ADVISORS PIII°;;AII,,„ III.I....S°"rA°°rIII;I;; CaII�I iW, ...........mild rs i.-'tAlII III II AIIISIII.I....IPS Mark R. Sadler Mike C. O'Brien State of Texas Certification #TX -1380142-G State of Texas Certification #TX -1331171-G Gina Cannova Phalen State of Texas Certification #TX -1380648-G PARCEL 93 - WEsTow PLA cE, LTD. PAGE 31 ( B IIIE-IN RFAITYAnvisops SECTION 11 - EXHIBITS PARCEL 93 - WEsToN PLA cE, LTD. PAGE 32 ( ')"B IR IllE-IN IREX rYADvisoys SEcTioNH-ExHiBiTs AREA MAP PARCEL 93 - WEsToN PLA cE, LTD. PAGE 33 ( ')"B IR IllE-IN IREX rYADvisoys SEmoNH-ExHiBiTs MARKET AREA MAP PARCEL 93 - WEsToN PLA cE, LTD. PAGE 34 (B IIIIIE-IlN REArvAo>vwsays SUBJECT AERIAL SECTIONH— EXHIBITS Source: GoogleEarth © 2016 *LOCATION OF BOUNDARY IS APPROXIMATE PARCEL 93 — WEsTON PLACE, LTD. PACE 35 1331lIS lavus 31m,mos ......... .. - I 1� 13 Ic M -2 .. .. ...... 11 r -2 (B IIIIIE-IlN REXrvAo>vwsaps FLOOD PLAIN MAP SECTIONH— EXHIBITS Source: GoogleEarth © 2016 with FEMA Overlay PARCEL 93 - WEsToNPLA cE, LTD. PACE 38 (B III IIE-IlNI RFAITY Anv9 sops SUBJECT PHOTOS Looking east along subject. Looking east along subject and Oak Street towards Bonne Brae St. PARCEL 93 - WEsToNPLA cE, LTD. PACE 39 (B III IIE-IlNI RFAITY Anv9 sops SUBJECT PHOTOS Looking west along Oak Street. Looking west along subject from eastern corner. PARCEL 93 - WEsToNPLA cE, LTD. PACE 40 ( B IIIE-IN RFAITYAnvisops SECTION III - COMPARABLE SALES ANALYSIS PARCEL 93 - WEsToN PLA cE, LTD. PACE 41 (B IIIIIE-IlN REXrvAo>vwsays SALES COMPARISON APPROACH SECTIONIII - COMPARABLE SALES ANALYSIS The sales comparison approach is a set of procedures in which a value indication is developed by comparing the subject to similar properties that have recently sold or are listed for sale. The steps taken to apply the sales comparison approach are as follows: ➢ Research recent sales of comparable properties; ➢ Select sales most similar to the subject and assemble pertinent data; ➢ Compare the sales to the subject under various elements of comparison and adjust the sale prices to compensate for differences that affect value; ➢ Reconcile the adjusted prices of the sales into a value indication for the subject. In order to derive an opinion of the market value of the parent tract land, assuming the property is available for development to its highest and best use, we have assembled sales data for similar properties in the area. After examining available sales data, we have selected the following land sale transactions as most comparable for this analysis. After an adjustment process, which compensates for the significant differences between these sales and the subject, these sales provide an indication of the parent tract's land value. In analyzing the individual sales, we have selected the price per square foot of land as the operative unit of comparison. This is the unit of comparison most commonly quoted by brokers, sellers, and purchasers when discussing sales transactions and is considered the most relevant for the subject. A presentation of the land sales follows. PARCEL 93 - WESToNPLA cE, LTD. PACE 42 (B III IIE-IlNI REXrvAo>vwsays SECTIONIII — COMPARABLE SALES ANALYSIS Land Sale No. 1 Property Identification Property Type Multi -Family Residential Address 717, 801 and 803 Bernard Street, Denton, Denton County, Texas Sale Data Grantor Roy Allen Stone Grantee Dongdong Zhou Sale Date October 12, 2016 Deed Book/Page 201 6-1 2941 5 Property Rights Fee simple Financing Cash to seller Verification Broker Contract Price $505,000 Effective Sale Price $523,000 ($18,000 demo cost) Land Data Zoning DR -2 - Downtown Residential Topography Generally level Utilities All to site Shape Rectangular Land Size Information Gross Land Size 0.63 Acres or 27,443 SF Indicators Effective Price/Gross SF $19.06 Remarks Homes were leased but leases were ending soon. Proximity to UNT made this a desirable location and the exposure time was very short. Plans to develop multi -family. PARCEL 93 — WESTONPLA CE, LTD. PACE 43 (B IIIIIE-IlN REXrvAo>vwsays SEmoNIII - COMPARABLE SALES ANALYSIS Land Sale No. 2 Property Identification Property Type Multi -Family Residential Address 1320 Neff Street, Denton, Denton County, Texas Sale Data Grantor FAMVEST, LTD Grantee Aspire Investments, LLC Sale Date June 30, 2016 Deed Book/Page 2016-79883 Property Rights Fee simple Financing Cash to seller Verification Broker Effective Sale Price $215,000 Land Data Zoning DR -1 - Downtown Residential Topography Generally level Utilities All to site Shape Rectangular Land Size Information Gross Land Size 0.368 Acres or 16,030 SF Indicators Effective Price/Gross SF $13.41 Remarks Zoned Downtown Residential - 1, which allows duplexes but not multi -family development. There are several duplexes on this street on 7,000sf land sites. This property consists of 2 parcels so it would be feasible to develop a duplex on each parcel. PARCEL 93 - WESToNPLA cE, LTD. PACE 44 (B III IIE-IlNI REXrvAo>vwsays SEmoNIII - COMPARABLE SALES ANALYSIS Land Sale No. 3 Property Identification Property Type Multi -Family Residential Address 510 Fort Worth Drive, Denton, Denton County, Texas Sale Data Grantor CC Ballard Holdings, LLC Grantee Five Ten Villas, LLC Sale Date April 19, 2016 Deed Book/Page 2016-44257 Property Rights Fee simple Financing Cash to seller Verification Broker Effective Sale Price $850,000 Land Data Zoning Downtown Commercial -General Topography Generally level Utilities All to site Shape Near rectangular Land Size Information Gross Land Size 2.035 Acres or 88,645 SF Indicators Effective Price/Gross SF $9.59 Remarks Buyer intends to develop multi -family residential. PARCEL 93 - WESToNPLA cE, LTD. PACE 45 (B IIIIIE-IlN REXrvAo>vwsays SEmoNIII - COMPARABLE SALES ANALYSIS Land Sale No. 4 Property Identification Property Type Multi -Family Residential / Commercial Address 2014, 2026 and 2030 W. Hickory St., Denton, Denton County, Texas Sale Data Grantor Texas SB Holdings, LLC Grantee Golden Star Rock Investments, LLC Sale Date September 30, 2015 Deed Book/Page 2015-116099 Property Rights Fee simple Financing Cash to seller Verification Broker Effective Sale Price $470,000 Land Data Zoning DR -2 - Downtown Residential Topography Generally level Utilities All to site Shape Rectangular Land Size Information Gross Land Size 0.639 Acres or 27,835 SF Indicators Effective Price/Gross SF $16.89 Remarks The property has 3 older rental homes at the time of sale. However, the intention is to demolish and build multi -family in the future. PARCEL 93 - WESToN PLA cE, LTD. PACE 46 (B IIIIIE-IlN REXrvADvwsays SEmoNIII - COMPARABLE SALES ANALYSIS Land Sale No. 5 Property Identification Property Type Multi -Family Residential / Commercial Address 1216-1220 Avenue A and 1328 Underwood St., Denton, Denton County, Texas Sale Data Grantor Chapel Hill Commercial Investments, LLC / Centennial Plaza Partners, Ltd. Grantee Ave A/Underwood LLC Sale Date September 11, 2014 and March 10, 2016 Deed Book/Page 2014-93731 / 2016-28557 Property Rights Fee simple Financing Cash to seller Verification Broker Effective Sale Price $971,738 Land Data Zoning DR -2 - Downtown Residential DC -G - Downtown Commercial Topography Generally level Utilities All to site Shape Triangular and Rectangular Land Size Information Gross Land Size 1.785 Acres or 77,739 SF Indicators Effective Price/Gross SF $12.50 Remarks The buyer has since developed apartments on the triangular parcel. Although the Grantor names differ, the broker advised us that these were the same parties and the sale price for both parcels was negotiated at the same time. The square parcel had some title issues that delayed closing until March 2016. PARCEL 93 - WESToN PLA cE, LTD. PACE 47 (B IIIIIE-IlN REXrvAo>vwsays SEmoNIII - COMPARABLE SALES ANALYSIS Land Sale No. 6 Property Identification Property Type Address Sale Data Grantor Grantee Sale Date Deed Book/Page Property Rights Financing Verification Effective Sale Price Land Data Zoning Topography Utilities Shape Land Size Information Gross Land Size Indicators Effective Price/Gross SF Multi -Family Residential 2505 W. Hickory Street, Denton, Denton County, Texas Speaking Properties, Inc. PDI Group, LLC March 25, 2013 2013-33004 / 2013-33005 Fee simple Cash to seller Buyer Dentex Properties, Inc. $275,000 ($260,000 sale price plus $15,000 demo) DR -2 - Downtown Residential Generally level All to site Rectangular 0.688 Acres or 29,969 SF $9.18 Remarks The buyer has since developed apartments on the property. This sale consisted of two parcels with different sellers, however, the buyer stated that the one owner was a broker who also represented the other parcel owner and the sale price for both parcels was negotiated at the same time as one price. PARCEL 93 - WESToN PLA cE, LTD. PACE 48 Zg 0 CN V N a) O C yam-+ Y C C T U O O N N N N N N a) CO i C o m C'0 O M O O O N O 0 ao cc N N N p N N p N N L p d O (U O U O N Co N (6 (6 N (6 (6 (6 L R N N C a) In N= (n O H N N ry Oi 69 � �0 Q Q Q d E E E �0 Q Q d Q Q E E E E vi N _ O Vy C`) O O O O O O O 0 s 5 m a) U U U U U U U J 7 a) m 0 O N Un N m O O - N a) U N U 0 N c x ao N N N N N a) �p pp n n NN NN p L�O�M d N� mm m m m m L O N C N Q Q d a) Q Q d Q Q Ir --69 C ER U O O O O O O U pcu U U U U U U � p o J i 0 O C Y N U Nm N N N N N a) N E= Q x o CU 0 'Do o H rn d # n n n m m m o n n n 3 m o m m m d C:) O N (U 0 >+ O 0 h ao CO m m m# Q Q Q O Q O_ O Q Q R N m W C C V M N N0 6R W E E E W 7 E C E E y Vf -C U U.0 U U U U p U DSU O U Q m N 0 a) ..- O C x O a) 0 H N N N N N N N Qi# M O N O M O O N 0 c E;LO p1 N N N N p N p N N p NN 'O p O� D U1 ca m m m m Q Q Q N m m m a) Q d Q Q L O y a) N N U ao 0o 69 E E E E E E E O L C6 J 3�U0 OL O a) 0 a) 0 N N N N N N N N a) in �# Qu 0 0 0 (n (1) (1) c) OCD CNam) -(OU C4a) O a) O CU 6 i QQ Q Q N..M 6�9 E EE E U E E EE _Oc V/) m O UN UN UN UQN UQN UQN UCNL ( J3UaO O C6 -2 /� N i m a) � x o Cfl N N N N N N a) O m w p o v o m m m m 3 m o m m m C6 m oo v_ (`') rn `m `m `m `m w `m `m `m J N a) � 69 U n n n n U n n n n U c) 0 W O O O O O O O o N J m a) N N Y �y (Q O CO x 245C ca O m a) O) O N m a) m Q N C N Z d N m O C C N U 0 a) m wU a) J >. y N 0 N a) N U a) =6 CN O 0 U a) d LL') N N p � O_ U cn N m U CU U (n O d 'O Q N 5 C �'CU -0 N J Q V C a) L m m S 0 LL .CU 0 -"e O LL N O C a) N a) Ll U o > m (U U o Z N O ) N O J w (7 5 !A d N U N U ' N N a in a` m U J CN V N ( B IIIE-IN RFAITYAnvisops SECTION IV - CERTIFICATION OF THE APPRAISAL PARCEL 93 - WEsToN PLACE, LTD. PAGE 50 (B IIIIIE-IlN REXrvAo>vwsays SECTIONIV— CERTIFICATION of THEAPPRAISAL We certify that, to the best of our knowledge and belief: 1. The statements of fact contained in this report are true and correct. 2. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are our personal, impartial, and unbiased professional analyses, opinions, and conclusions. 3. We have no present or prospective interest in the property that is the subject of this report, and we have no personal interest with respect to the parties involved. 4. We have performed no services, as an appraiser or in any other capacity, regarding the property that is subject of this report within the three-year period immediately preceding acceptance of this assignment. 5. We have no bias with respect to the property that is the subject of this report or the parties involved with this assignment. 6. Our engagement in this assignment was not contingent upon developing or reporting predetermined results. 7. Our compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. 8. Our analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, which includes the Uniform Standards of Professional Appraisal Practice (USPAP). 9. Mark R. Sadler, Mike C. O'Brien and Gina Cannova Phalen made a personal inspection of the property that is the subject of this report. 10. No one has provided significant professional assistance to the persons signing this report. 11. This appraisal is not based on a requested minimum valuation, a specific valuation, or the approval of a loan. PARCEL 93 — WESTON PLACE, LTD. PACE 51 REXr IIIAs�� N Rr�,cry �,o>vw sc��s SECTIONIV— CERTIFICATION of THEAPPRAISAL 12. We have not relied on unsupported conclusions relating to characteristics such as race, color, religion, national origin, gender, marital status, familial status, age, receipt of public assistance income, handicap, or an unsupported conclusion that homogeneity of such characteristics is necessary to maximize value. 13. It is our opinion that the subject does not include any enhancement in value as a result of any natural, cultural, agricultural or scientific influences retrospective or prospective. 14. We have extensive experience in appraising properties similar to the subject and are in compliance with the Competency Rule of USPAP. 15. The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives. 16. As of the date of this report, Mark R. Sadler, Mike C. O'Brien and Gina Cannova Phalen have completed the Standards and Ethics Education Requirement for Candidates of the Appraisal Institute. Mark R. Sadler Mike C. O'Brien State of Texas Certification #TX -1380142-G State of Texas Certification #TX -1331171-G Gina Cannova Phalen State of Texas Certification #TX -1380142-G PARCEL 93 — WESToN PLA cE, LTD. PAGE 52 (B IIIIIE-IlN RFACry Anv9 sops SECTION V - ASSUMPTIONS AND LIMITING CONDITIONS AND DEFINITIONS PARCEL 93 - WEsToN PLA cE, LTD. PACE 53 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS ASSUMPTIONS AND LIMITING CONDITIONS In conducting this appraisal, we have assumed, except as otherwise noted in our report, as follows: 1. The title is marketable and free and clear of all liens, encumbrances, encroachments, easements and restrictions. The property is under responsible ownership and competent management and is available for its highest and best use. 2. There are no existing judgments or pending or threatened litigation that could affect the value of the property. This excludes the project which is addressed in this report. 3. There are no hidden or undisclosed conditions of the land or of the improvements that would render the property more or less valuable. Furthermore, there is no asbestos in the property. 4. The property is in compliance with all applicable building, environmental, zoning, and other federal, state and local laws, regulations and codes. 5. An appraisal is inherently subjective and represents our opinion as to the value of the property appraised. 6. The conclusions stated in our appraisal apply only as of the effective date of the appraisal, and no representation is made as to the affect of subsequent events. 7. No changes in any federal, state or local laws, regulations or codes (including, without limitation, the Internal Revenue Code) are anticipated. 8. No environmental impact studies were either requested or made in conjunction with this appraisal, and we reserve the right to revise or rescind any of the value opinions based upon any subsequent environmental impact studies. If any environmental impact statement is required by law, the appraisal assumes that such statement will be favorable and will be approved by the appropriate regulatory bodies. 9. We are not required to give testimony or to be in attendance in court or any government or other hearing with reference to the property without written contractual arrangements having been made relative to such additional employment. 10. We have made no survey of the property and assume no responsibility in connection with such matters. Any sketch or survey of the property included in this report is for illustrative purposes only and should not be considered to be PARCEL 93 — WESToN PLA cE, LTD. PAGE 54 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS scaled accurately for size. The appraisal covers the property as described in this report, and the areas and dimensions set forth are assumed to be correct. 11. No opinion is expressed as to the value of subsurface oil, gas or mineral rights, if any, and we have assumed that the property is not subject to surface entry for the exploration or removal of such materials, unless otherwise noted in our appraisal. 12. We accept no responsibility for considerations requiring expertise in other fields. Such considerations include, but are not limited to, legal descriptions and other legal matters, geologic considerations, such as soils and seismic stability, and civil, mechanical, electrical, structural and other engineering and environmental matters. 13. The distribution of the total valuation in this report between land and improvements applies only under the reported highest and best use of the property. The allocations of value for land and improvements must not be used in conjunction with any other appraisal and are invalid if so used. This appraisal report shall be considered only in its entirety. No part of this appraisal report shall be utilized separately or out of context. 14. Neither all nor any part of the contents of this report (especially any conclusions as to value, the identity of the appraisers, or any reference to the Appraisal Institute) shall be disseminated through advertising media, public relations media, news media or any other means of communication (including without limitation prospectuses, private offering memoranda and other offering material provided to prospective investors) without the prior written consent of the appraisers. 15. Information, estimates and opinions contained in this report, obtained from sources outside of the office of the undersigned, are assumed to be reliable and have not been independently verified. 16.Any income and expense estimates contained in this appraisal report are used only for the purpose of estimating value and do not constitute predictions of future operating results. 17. No assurance is provided that the methodology and/or results of the appraisal will not be successfully challenged by the Internal Revenue Service. In particular, the methodology for appraising certain types of properties, including without limitation, government subsidized housing, which has been the subject of debate. PARCEL 93 — WESToN PLA cE, LTD. PAGE 55 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS 18. If the property is subject to one or more leases, any estimate of residual value contained in the appraisal may be particularly affected by significant changes in the condition of the economy, of the real estate industry, or of the appraised property at the time these leases expire or otherwise terminate. 19. No consideration has been given to personal property located on the premises or to the cost of moving or relocating such personal property; only the real property has been considered. 20. The current purchasing power of the dollar is the basis for the value stated in our appraisal; we have assumed that no extreme fluctuations in economic cycles will occur. 21. The value found herein is subject to these and to any other assumptions or conditions set forth in the body of this report but which may have been omitted from this list of Assumptions and Limiting Conditions. 22. The analyses contained in this report necessarily incorporate numerous estimates and assumptions regarding property performance, general and local business and economic conditions, the absence of material changes in the competitive environment and other matters. Some estimates or assumptions, however, inevitably will not materialize, and unanticipated events and circumstances may occur; therefore, actual results achieved during the period covered by our analysis will vary from our estimates, and the variations may be material. 23. The Americans with Disabilities Act (ADA) became effective January 26, 1992. We have not made a specific survey or analysis of this property to determine whether the physical aspects of the improvements meet the ADA accessibility guidelines. In as much as compliance matches each owner's financial ability with the cost to cure the non -conforming physical characteristics of a property, we cannot comment on compliance to ADA. Given that compliance can change with each owner's financial ability to cure non -accessibility, the value of the subject does not consider possible non-compliance. Specific study of both the owner's financial ability and the cost to cure any deficiencies would be needed for the Department of Justice to determine compliance. 24. This appraisal report has been prepared for the exclusive benefit of Freese and Nichols, Inc.; DME; 7 Arrows Land Staff, LLC; and their agents, representatives and assigns. It may not be used or relied upon by any other party. All parties who use or rely upon any information in this report without our written consent do so at their own risk. PARCEL 93 — WESTON PLACE, LTD. PAGE 56 E r III IIs �� I Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS 25. No studies have been provided to us indicating the presence or absence of hazardous materials on the site or in the improvements, and our valuation is predicated upon the property being free and clear of any environment hazards. 26. We have not been provided with any evidence or documentation as to the presence or location of any wetlands. Wetlands generally include swamps, marshes, bogs, and similar areas. We are not qualified to detect such areas. The presence of wetlands may affect the value of the property, and the value conclusion is predicated on the assumption that wetlands are non-existent or minimal. PARCEL 93 — WESToN PLA cE, LTD. PAGE 57 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS SPECIAL ASSUMPTIONS AND LIMITING CONDITIONS In addition to the previously discussed assumptions and limiting conditions, the appraisers are compelled to outline the following special assumption and limiting condition: None. PARCEL 93 — WESToN PLA cE, LTD. PAGE 58 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS DEFINITIONS The definitions included in this Addendum have been extracted, solely or in combination, from definitions and descriptions printed in: ➢ The Uniform Standards of Professional Appraisal Practice 2016-2017 Edition (USPAP); ➢ The Dictionary of Real Estate Appraisal, Sixth Edition, Appraisal Institute, Chicago, Illinois, 2015 (Dictionary); ➢ The Appraisal of Real Estate, Fourteenth Edition, Appraisal Institute, Chicago, Illinois, 2013; and/or Appraisal The act or process of developing an opinion of value; an opinion of value. (USPAP) Across the Fence Method A land valuation method often used in the appraisal of corridors. The across the fence method is used to develop a value opinion based on comparison to abutting land. (Dictionary) Assemblage The combining of two or more parcels, usually but not necessarily contiguous, into one ownership or use. (Dictionary) Effective Date of the Appraisal The date at which the value opinion is an appraisal applies, which may or may not be the date of inspection; the date of the market conditions that provide the context for the value opinion. Current appraisals occur when the effective date of the appraisal is contemporaneous with the date of the report. Prospective value opinions (effective date of the appraisal subsequent to the date of the report) are intended to reflect the current expectations and perceptions along with available factual data. Retrospective value opinions are likely to apply as of a specific historic date; the opinions are intended to reflect the expectations and perceptions of market participants at the specified date, along with available factual data. Data subsequent to the effective date may be considered in estimating a retrospective value as a confirmation of trends. (Dictionary and USPAP) Fee Simple Estate Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat. (Dictionary) PARCEL 93 — WESToN PLA cE, LTD. PAGE 59 REX r III IIs �� N Rr�,cry �,o>vw sc��s SECTION V —ASSUMPTIONS AND LIMITING CONDITIONS & DEFINITIONS Insurable Value The Appraisal Institute defines insurable value as the value based on the replacement and/or reproduction cost of physical items that are subject to loss from hazards. It is that portion of an asset or asset group that is acknowledged or recognized under the provisions of an applicable loss insurance policy. Marshall Et Swift defines insurable value as the "replacement or reproduction cost less deterioration and non -insurable items." (MVS and Dictionary) Leased Fee Estate An ownership interest held by a landlord with the rights of use and occupancy conveyed by lease to others. The rights of the lessor (the leased fee owner) and the leased fee are specified by contract terms contained within the lease. (Dictionary) Leasehold Estate The interest held by the lessee (the tenant or renter) through a lease conveying the rights of use and occupancy for a stated term under certain conditions. (Dictionary) Market value is the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available in the reasonable future. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954). PARCEL 93 — WESTON PLACE, LTD. PAGE 60 (B IIIIIE-IlN SECTION VI - QUALIFICATIONS OF THE APPRAISERS PARCEL 93 - WEsToN PLA cE, LTD. PACE 61 E ry III II s �� Isc���, Rr�,cry �,o>vw SECTION VI — Q UALIFICATIONs of THE APPRAISERS PROFESSIONAL QUALIFICATIONS OF MARK R. SADLER EXPERIENCE' �Mi, Mark R. Sadler is a Director with O'Brien Realty Advisors, LLC, a full service real estateconsulting and appraisal firm. Mr. Sadler has performed valuation analysis on various properties including, but not limited to, industrial buildings, retail buildings, various special-purpose facilities, mixed-use properties and has worked extensively on eminent domain assignments of all types of properties. Prior to joining O'Brien Realty Advisors, LLC, Mr. Sadler was a Senior Analyst with Korman O'Brien, LLC and prior to that was an Analyst for four years with Integra Realty Resources' Fort Worth Office. Mr. Sadler is a 2005 graduate of Texas A&M University in College Station with a Bachelor of Business Administration degree in Management. In 2006, Mr. Sadler earned his Master's degree of Land Economics and Real Estate from Texas A&M University in College Station. Currently, Mr. Sadler is an advanced candidate progressing toward obtaining his MAI designation with the Appraisal Institute. PROFESSIONAL Texas State Certified General Real Estate Appraiser No. TX -1380142-G ACTIVITIES' Appraisal Institute — Candidate for Designation ■ Member — International Right of Way, Chapter 36 EDUCATION: Bachelor of Business Administration, Management Texas A&M University, College Station, Texas, 2005 ■ Master of Land Economics & Real Estate Texas A&M University, College Station, Texas, 2006 ■ Master's Degree Course Work: Real Property Valuation Real Estate Appraisal Case Studies Real Property Analysis Commercial Real Estate Law Analysis of Money & Capital Markets Construction Practices Land Economics Real Property Finance Real Estate Development Analysis GIS in Land & Property Management ■ Additional Appraisal Course Work: Standards of Professional Appraisal Practice (USPAP) Business Practices and Ethics Supervisor -Trainee Course for Texas Eminent Domain and Condemnation Valuation of Detrimental Conditions in Real Estate Analyzing Distressed Real Estate General Appraiser Site Valuation & Cost Approach Apartment Appraisal, Concepts & Applications Appraising Small Apartment Properties Appraisal of Assisted Living Facilities Advanced Hotel Appraising — Full Service Hotels PARCEL 93 — WEsToN PLA cE, LTD. PACE 62 REX ry III II s �� Nsc���, Rr�,cry �,o>vw SECTION VI — Q UAmmcATIONs of THE APPRAISERS Texas ZIppraiar litenoing anrb Certification �3aarb P.O. Box 12188 Austin, Texas 78711-2188 Certified General Real Estate Appraiser Nuimber: TX 1380142 G Issued: 04/29120116 Expires: 04/30/2018 Appraiser MARK RICHARD SADLER Having provided satisfactory evidence of the qualifications required by the Texas Appraiser Licensing and Certification Act, Texas Occupations Code, Chapter 1103, is authorized to use this title, Certified General Real Estate Appraiser. uglas E. Old ixon C"mi"ianer PARCEL 93 — WEsToN PLA cE, LTD. PACE 63 E ry III II s �� Isc���, Rr�,cry �,o>vw SECTION VI — Q UALIFICATIONs of THE APPRAISERS PROFESSIONAL QUALIFICATIONS OF MIKE C. O'BRIEN EXPERIENCE: Mike C. O'Brien is President of O'Brien Realty Advisors, LLC, a full service real estate consulting and appraisal firm. Mr. O'Brien has performed appraisals on various properties including, but not limited to, shopping centers, apartment complexes, industrial facilities, raw and developed r 'f land, office towers and complexes, restaurants, and mixed-use developments. Mr. O'Brien has valued and consulted on properties in Alabama, Arkansas, Illinois, Louisiana, Mississippi, Missouri, New Mexico, Ohio, Oklahoma, Texas and Wisconsin. He has provided consultation, feasibility studies, and has worked extensively on complex eminent domain assignments of all types of properties. Mr. O'Brien has worked on valuations of easement interest, partial interest, and undivided interest. Assignments have also included consultation for both ad valorem and estate tax purposes. He has testified in eminent domain proceedings before Texas courts and before numerous Special Commissioners hearings in various counties throughout Texas. In addition, Mr. O'Brien has been a guest lecturer to TCU's real estate appraisal course since 2008. Mr. O'Brien is a 1997 graduate from The University of Texas in Austin with a Bachelor of Science degree in Economics and a minor in Business Foundations. Prior to the formation of his company, he was a Principal with Korman O'Brien, LLC. Mr. O'Brien was a Senior Analyst with Integra Realty Resources' Fort Worth office from January 2003 to 2008. Prior to his work with Integra, Mr. O'Brien trained with Lewis Realty Advisors and Arthur Andersen and Company in Houston, Texas as a real estate associate on various appraisal projects. During college, he trained with the development firm of Barshop and Oles, Inc. in Austin, Texas as a real estate intern. Currently, Mr. O'Brien is an advanced candidate progressing toward obtaining his MAI designation with the Appraisal Institute. PROFESSIONAL ' Texas State Certified General Real Estate Appraiser ACTIVITIES' ' Certificate No. TX -1331171-G Also licensed in Arkansas, Louisiana, New Mexico and Oklahoma ■ Appraisal Institute — Candidate for Designation Program - Public Relations Committee, Central Texas Chapter (2010-2012) ■ Member — International Right of Way, Chapter 36 - Membership Committee Chairman (2013 — 2015) - Steve Baggett Memorial Golf Tournament Committee Co -Chair (2013 & 2015) ■ Member — Greater Fort Worth Real Estate Council - Membership Committee (2011— 2014) ■ Member—Tarrant County Bar Association ■ Member — Fort Worth Chamber of Commerce ■ Leadership Fort Worth, Class of 2008 ■ Overton Park Neighborhood Association — Parks Committee (2009 — 2012) EDUCATION: Bachelor of Science, Economics, Minor in Business Foundations The University of Texas in Austin, 1997 ■ Coursework accredited by the Appraisal Institute, The University of Texas, and the State of Texas PARCEL 93 — WEsToN PLA cE, LTD. PACE 64 REX '"B�R III E -IN REXryAwsoys SECTION VI— QUALIFICATIONS OF THE APPRAISERS Texn Zlppratar Kireniina arab Certifiratton 39oarb P.O. Box 12188 Austin, Texas 78711-2188 Certified General Real Estate Appraiser Number: TX 1331171 G Issued: 0,7/0112016 Expires: 06130/2018 Appraiser: MICHAEL C OBRIEN Hlaving provided satisfactory evidence of the qualifications required by the Texas Appraiser Licensing, and Certification Act, Texas Occupations Code, Chapter 1103, is authorized 'to use this title, Certified General Real Estate Appraiser. gl,,. Old A�lx,, C', "lo"r PARCEL 93 — WEsToN PLACE, LTD. PAGE 65 REX ry III II s �� Isc���, Rr�,cry �.o>vw SECTION VI — Q UALIFICATioNs of THE APPRAISERS PROFESSIONAL QUALIFICATIONS OF GINA CANNOVA PHALEN EXPERIENCE• d �h J, Gina L. Cannova Phalen is a Senior Analyst with O'Brien Realty Advisors, LLC, a full service real estate consulting and appraisal firm. Ms. Phalen has consulted on various eminent domain assignments for all types of real estate. Prior to joining O'Brien Realty Advisors, LLC, Ms. Phalen was an analyst with LandPro Valuation in Mesa, Arizona and Sell and Associates in Tempe, Arizona. Ms. Phalen is a graduate of Arizona State University with a Bachelor of Business Administration degree in Supply Chain Management. PROFESSIONAL Texas State Certified General Real Estate Appraiser No. TX -1380648 ACTIVITIES: Appraisal Institute —Practicing Affiliate International Right of Way, Chapter 36 — Member CREW Network (Commercial Real Estate Women), Fort Worth Chapter • CREW Communications Committee Co -Chair- 2016-2017 City of Southlake, Texas — Building Board of Appeals (2016-2018) City of Southlake, Texas — Zoning Board of Adjustment (2016-2017) EDUCATION: Bachelor of Business Administration, Supply Chain Management Arizona State University, 1997 Coursework accredited by the Appraisal Institute and/or TALCB including: Uniform Standards of Professional Appraisal Practice Mastering Unique and Complex Properties Expert Witness for Commercial Appraisers General Appraiser Sales Comparison Approach General Appraiser Site Valuation and Cost Approach General Appraiser Market Analysis and Highest & Best Use General Appraiser Income Approach Parts I & II Eminent Domain Conference, CLE International — 2016 PARCEL 93 — WEsToN PLA cE, LTD. PACE 66 ( B ���E-IN REMI-YADvisops SEmoNVI— QuAmmcA TioNs of THE APPRAISERS I Number TX 1380648 G Issued, 019/23/2016 Expires: Oi9/3012018 WOM Having provided satisfactory evidence of the quallifirmtions required by the Texas Appraiser Licensing and Certification Act, Texas Occupations Code Cap0uh ter 113, is altorized to use this title, Certified Gorl Real shuts Appraiser. /17 uglas 9. Old, ixon Commissioner PARCEL 93 — WEsToN PLA cE, LTD. PAGE 67 U U LU LU U z ui LLJ 1. IIIIIIIIIIIIIIIIIIIII (III IWIIIII II� E 1111111 II E u111111111.II1 I I IIIIIIIIIIIII 0 0 un u1111111111111n IIIIIIIIIIIIIIIIIII u1111111111� III 1111111 1110 I u1111111111� u111111111111 IIWI u11n111111� pl a 1111111 n 1111111 (IIII IIIIIIIIIIIIIIIIIIIIIIIIII lmmmmn cn 0W a 1n 11n IIIIIIIIIIIII CU un IIIIIIIIIIIIIIIIIII I I I0 ..... IIII (IIIIIIIIIII IIIIIIIII IIIIIIIIIII 1111 co u1111111111111111111n1 1111111111 IIII C...... 1 III IIIIIIIIIII 1 III (IIIIIIIIIIIIIIIIIII un u1111111111111n 1 1 692 IIIIIIIII. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN Legislation Text File #: ID 17-632, Version: 1 AGENDA CAPTION Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the manufacturing and installation of Wayfinding Signage for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6275C -awarded to Color -Ad Inc. in the not -to -exceed amount of $599,385.00 City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I._eggl;>karI EXHIBIT 1 City of Denton AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Mario Canizares DATE: June 6, 2017 SUBJECT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the manufacturing and installation of Wayfinding Signage for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6275C -awarded to Color -Ad Inc. in the not -to -exceed amount of $599,385.00.) RFP INFORMATION Following the approval of the Downtown Implementation Plan (DTIP) on August 17, 2010, action items identified in the plan were initiated, one of which was the development of a Wayfinding Signage Project in the DTIP area. The Wayfinding Signage Project was further expanded to develop a more comprehensive package including pedestrian signs, vehicular signs, and large gateway signs for the entire city. Based on recommendations of the DTIP, information from previous studies, and staff input, a sign palette was prepared in three different themes. In order to build consensus, staff presented the three themes to various boards, committees and commissions to receive input. The information was gathered and compiled to create a modified theme, which was used for an online survey to receive input from citizens. The online survey was made available for two weeks and over 370 citizens participated in the survey. Below are the results of the survey: • Question 41: Overall approximately 85.8% agreed that the proposed Wayfinding Signage Network is easy to read and understand. While 7.4% strongly disagreed and 6.8% were neutral. • Question 42: Overall approximately 73.2% agreed that the proposed Wayfinding Signage Network represents the historical character of Denton while incorporating modern features. While 10.8% disagreed and 16.0% were neutral. • Question 43: Overall approximately 50.7% agreed that the proposed Wayfinding Signage Network is unique and identifiable to Denton. While 21.5% disagreed and 27.8% were neutral. • Question 44: Overall approximately 78.9% agreed that the proposed Wayfinding Signage Network will enhance wayfinding throughout the City and Downtown. While 11.0% disagreed and 10.1 % were neutral. • Question 45: A total of 177 citizens responded to the question, what is your suggestion for improvement? Of the responses, 26 were positive comments, 75 were constructive criticisms, and the remaining 76 were general comments. EXHIBIT 1 The citizen comments generally endorsed the proposed sign theme. The modified theme and results of the survey was later presented to the City Council on July 19, 2011. Council directed staff to commence with the project and to hire a consultant to prepare the Technical Design Documents necessary for the manufacturing and installation of the signs. On December 18, 2012, City Council approved an ordinance authorizing a Professional Services Agreement (PSA) with Merje Design for consulting services to prepare the required design documents in the amount of $119,205. Invoices for this work is being paid from the Capital Improvement Project account for the implementation of the Wayfinding Signage Project. The proposed Wayfinding Signage Project includes designs for the following: • large gateway signs (totems and monuments) • vehicular directional signs • historic district identification signs • downtown gateway signs • parking lot trailblazer signs • parking lot identifications signs • pedestrian directions signs • kiosks Within the Downtown area the following destinations have been identified: • Bolivar Parking Lot • Downtown Square • Campus Theater • Emily Fowler Library • Cedar Parking Lot • Exposition Parking Lot • Center for the Visual Arts • Firefighter's Museum • Chamber of Commerce • Hickory Parking Lot • City Hall East • McKinney Parking Lot • City Hall Main • Mulberry Parking Lot • Civic Center • Oak/Hickory Historic District • Courthouse Museum • Quakertown Park • DCTA Transit Center • Senior Center • Denton County Courts Building • Texas Woman's University • Denton County Historical Park • University of North Texas • Development Services • Visitor Center Outside of the Downtown area the following destinations have been identified: • Bell Avenue Conservation District • C.H. Collins Stadium • Clear Creek Heritage Center • Evers Park • Denton County Complex • Denton Enterprise Airport • DCTA Medpark Station • ECO-W.E.R.C.S. • Mack Park • MLK Jr. Rec Center • McNatt Animal Shelter • Natatorium • North Branch Library • North Lakes Park • NT State Fairgrounds • South Branch Library • South Lakes Park • Texas Woman's University • University of North Texas • UNT Apogee Stadium • UNT Discovery Park • Water Works Park • West Oak Historic District EXHIBIT 1 It should be taken into consideration that during a period between 2013 and 2015 while the Denton Plan 2030 was being prepared, the project was paused to allow for the City to confirm its Citywide Branding and Placemaking strategy. Upon approval of the Denton Plan 2030, Council directed staff to commence with the project and start Phase L The phases of the Wayfinding Signage Project is outlined below, starting with the installment of signs in the Downtown area. Phase 1 - manufacturing and installation of the parking lot trailblazer signs, parking lot identifications signs, pedestrian directions signs, and kiosks within the DTIP area. Generally located south of Parkway, east of Carroll, north of Sycamore, and west of Exposition. Refer to Exhibit 5 for proposed sign locations. Phase 2 - manufacturing and installation of the vehicular directional signs, historic district identification signs, and downtown gateway signs within the Downtown area. Generally located south of Parkway, east of Carroll, north of Eagle, and west of Exposition. Phase 3 - manufacturing and installation of the vehicular directional signs throughout the core of the City. Generally located within I-35 and Loop 288. Phase 4 - manufacturing and installation of the vehicular directional signs along the periphery of the City. Generally located along the frontage of I-35. Phase 5 - manufacturing and installation of additional parking lot identifications signs in coordination with future City parking lot redevelopment projects. The Capital Improvement Project account for the implementation of the Wayfinding Signage Project contains approximately $741,600, less $119,205 for Merje Design, the City has approximately $622,000 for the manufacturing and installation of the wayfinding signs. Based on the proposed cost submitted by Color -Ad Inc., only Phases 1 through 3 will be funded. Phases 4, 5 and the large gateway signs proposed along I-35 are not part of this contract. Signs within phases 4, 5 and the large gateway signs proposed along I-35 were purposely selected because they were either located along the frontage of I-35 where future widening is still pending or were parking lot identifications signs proposed within future City parking lot redevelopment projects. Throughout the process key stakeholders were involved in the Wayfinding Signage Project. Below is a list of entities that reviewed and provided input on the draft Design Intent Drawings and Programing Documents: • Denton Convention and Visitors Bureau • Denton County • DCTA • Downtown Main Street Association • Downtown Task Force • Public Art Committee • TxDOT • Texas Woman's University (TWU) EXHIBIT 1 • University of North Texas (UNT) The Wayfinding Signage Project is a city initiated project, cost sharing was not discussed with Denton County, DCTA, TxDOT, TWU and UNT. Representatives from each entity reviewed sign designs, proposed locations, and destinations. Since some of the signs will be located on TxDOT rights-of-way, additional review and coordination with TxDOT will continue as installation of the signs will require staff inspections. Requests for Proposals were sent to forty (40) prospective suppliers of this item. 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 project schedule, compliance to specifications, past performance, and price. After clarifications were made and a budget versus cost analysis was performed, a request for Best and Final Offer (BAFO) was sent to the top two ranked respondents. Both BAFO responses were higher than the original cost proposal due to dividing the project into multiple phases. The manufacturing of all the signs proposed in Phase 1 through 3 will occur in the beginning of the project and the installation of the signs will be done in phases. Color -Ad, Inc. was ranked the highest and determined to be the best value for the City (Exhibit 1). Color -Ad, Inc., the lowest priced respondent, offered a wide array of civic experience, particularly in designing and installing signage on large scale projects. The references revealed outstanding remarks from other municipalities. The feedback included frequent and effective communication with project managers, quality workmanship, and meeting project budget and schedule goals. PRIOR ACTION/REVIEW (Council, Boards, Commissions) • August 17, 2010 - City Council acceptance of DTIP • February 10, 2011 - Downtown Task Force • February 10, 2011 - Main Street Association Board • February 23, 2011 - City of Denton Communicators Group • March 11, 2011 - CIP Oversight Committee • March 23, 2011 - Planning and Zoning Commission • March 29, 2011 - Developers Committee • April 4, 2011 - Parks, Recreation and Beautification Board • May 13 - May 27, 2011 - Online Survey • April 19, 2011 - City Council Work Session • July 19, 2011 - City Council Work Session • December 18, 2012 - City Council approved Professional Services Agreement (PSA) with Merje Design • March 12, 2015 - Downtown Task Force • September 15, 2015 - City Council Work Session • February 9, 2016 - Mobility Committee Meeting • March 10, 2016 - Downtown Task Force RECOMMENDATION Award to Color -Ad, Inc. in the not -to -exceed amount of $599,385.00. The not -to -exceed amount reflects estimated quantities based on three phases involving design, manufacturing, and installation for the project. The first phase will begin immediately upon award of the contract. The second phase will be completed by June 2018 and the third phase by December 2018. EXHIBIT 1 PRINCIPAL PLACE OF BUSINESS Color -Ad, Inc. Manassas, VA ESTIMATED SCHEDULE OF PROJECT The project is estimated to be completed no later than December 2018. The contract will automatically expire upon completion of the project and acceptance by the City of Denton. FISCAL INFORMATION Funding for the acquisition of this product will be charged to the Capital Improvement Project account number 400127470.1365.40100 during each phase of the project. The funding is from the February 5, 2005 GO bond election. 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: 4.3 Provide quality, diverse, and accessible neighborhood services for the community EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Evaluation and Scoring Sheet Exhibit 3: Ordinance Exhibit 4: Contract Exhibit 5: Menu of Sign Types—Vehicular and Pedestrian Signs Exhibit 6: Vehicular and Pedestrian Sign Location Maps Exhibit 7: Menu of Sign Types—Gateway Signs Exhibit 8: Power Point Respectfully submitted: Galen Gillum, 349-7656 Director of Capital Projects For information concerning this acquisition, contact: Munal Mauladad at 349-8313. E W i V 0 7 C o C m O M 1D N -05 +, 7 x H C d' O N N u ++ i c6 S n V r -I c; M Q M s U i CL ai a c, U O Otw ei O O1 o6 00 m '0) V O = o C CL O to d bA 0bfi c O ^ m Ln 06 06 •L w m 4+ N O l"1 0 m 14 N Q 7 O X O C C O O W mr 4+ O N2 N m L!1 ri (1 7 00 M O c on ui m 000 N c 14 O r -I u m 41N U- i/I• C C O "a O O O O O a 06 a) o o C7 O m 0 N f0 to O.SM cps 00 N m 00 f6 O C oiS O1 c E a ` C7 X H *' � v O t C C m i/f C O j N C m a Iv d `o N o In 3 Q O ?� LL U O L N U O — 0 3 V) C i O 00 U F— W c N � U f0 _ bf1 M.Ni ++ d u E d O 00 O O p 1414 W i/i * O O y O O I� N O O 114 0 O Ln M n mLn > «� c 'p m a N m v � m � 00 O Ln bfi N i/I• v U N O d d 3E V_ p C O v CA -' O O z Q E M u v O ri u i M d E c m c m z " O V +° V N n 7 o V) U i •N m o a` m m m Q 41 u d Q OA m ii N O_ 3 Y Y `o U O a � o LU aJ Z i..l • V CL 10 `0 A/ i o' O_ H LL W i V 7 C V U O O � O 1D N -05 +, � � m w t O. U c; s CL i O O Otw ei O O1 o6 00 m '0) V C N aJ O O O W W 06 06 06 N w m 4+ N N Q 7 O 0 C O O O W W 4+ O N2 N m L!1 ri (1 7 O N V m U- C C "a O O O O O a 06 a) o o r, 0 cps N f6 C O1 c E a 41 O t i U N N C O j w LL c 3 m a Iv d `o o In N U0 ?� LL U L N U O — 0 3 V) C i O > U F— W O E U f0 luE ++ d U E d H EI0- O O p 1414 N O Q o c vi 0) t Q 0=0 O O N t N ci N N O t - LL W W .� C L t O' CL T O U a W C: L w U N t t U m N w m O w C: O o 0 0C C m LL a x 0) C: m nO CO Q x c N t f— iF 00 O N N �C C 0) u Q C :L EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE MANUFACTURING AND INSTALLATION OF WAYFINDING SIGNAGE FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP NO. 6275 C -AWARDED TO COLOR -AD INC. IN THE NOT -TO -EXCEED AMOUNT OF $599,385). 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 6275 C Color -Ad, Inc. $599,385 (the "Proposal") 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 No. 6275-C 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 proposal, 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 )2017. CI -IRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY BY:�-. F� EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND COLOR -AD, INC. (RFP 6275-C) THIS CONTRACT is made and entered into this date , by and between COLOR -AD, INC., a corporation, whose address is 7200 Gary Road, Manassas, Virginia 20109, 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 6275- C — Construction of Wayfinding Signage for the City of Denton, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes as "Exhibit B". 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 Request for Proposal 4 6275-C (Exhibit "B" on file at Office of Purchasing Agent); (c) General Provisions -Standard Terms and Conditions (Exhibit "C"); (d) Payment and Performance Bond Requirements (Exhibit "D"); (e) Insurance Requirements (Exhibit "E"); (f) Certificate of Interested Parties Electronic Filing (Exhibit "F"); (g) Contractor's Proposal (Exhibit "G"); (h) Form CIQ — Conflict of Interest Questionnaire (Exhibit "H"). These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to 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." Contract 6275-C EXHIBIT 4 IN WITNESS WHEREOF, the parties of these presents have executed this Contract in the year and day first above written. ,1ZI WEl" BY: AUTHORIZED SIGNATURE Date: Name: Title: PHONE NUMBER EMAIL ADDRESS TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS A Texas Municipal Corporation By: TODD HILEMAN CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY Contract 6275-C EXHIBIT 4 EXHIBIT A SPECIAL TERMS AND CONDITIONS Total Contract Amount The Contract total for services shall not exceed $599,385. Pricing shall be per Exhibit G attached. Contract Term The Contract shall commence upon the issuance of a Notice to Proceed. Materials and services undertaken pursuant to the specifications in RFP 6275-C shall commence within fourteen (14) calendar days of receipt of Notice to Proceed and complete the three (3) phases of the project no later than September 30, 2018. The Contract shall automatically expire upon the completion of the work and acceptance by the City. Delays are further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3. Payment Milestones: At the beginning of each phase, the Contractor shall invoice upon completion of each of �I the following major milestones as detailed in Exhibit G which are attached hereto and incorporated herein by reference: 1. Submittal Phase (shop drawings, message schedule, and engineering) 2. Procurement of Materials 3. Prototype 4. Manufacture of signage 5. Logistics (shipping to designated City of Denton site) 6. Installation Phase 1 7. Installation Phase 2 8. Installation Phase 3 9. Final punch list, walk through, maintenance manual, and closeout. Contractor shall provide supporting documentation of the milestone progress with the submittal of the monthly progress report. Special Notice and Additional Requirement(s): 1. A schedule of Contractor's Quantities and Unit Prices shall be filled out as a part of the solicitation. Extensions of units and unit prices must total up correctly. 2. All Contractor submittals including, but not limited to, shop drawings, message schedules, engineering, color samples, prototypes (color samples and prototypes for Phases 1 through 3) as specified in the solitication shall be performed together. 3. Phases 1 through 3 signage shall be manufactured by the Contractor during the first phase of the project. 4. Contractor shall install the signage designated for each phase during each corresponding phase. 5. Additional safety precautions shall be instituted by the awarded Contractor, as the work Contract 6275-C EXHIBIT 4 environment will be in an area where citizens and employees may be present, and work safety must be coordinated with the owner. 6. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal. City of Denton Duties and Responsibilities: 1. When applicable, City staff is scheduled to remove the existing structures along with other site improvements. 2. The Development Services Department shall obtain all necessary permits if applicable. The City shall provide temporary storage of all Phases 1 through 3 manufactured signage, which shall be manufactured during the first phase of the project. Contract 6275-C EXHIBIT 4 EXHIBIT C GENERAL PROVISIONS - TERMS AND CONDITIONS FOR FACILITY CONSTRUCTION SERVICES 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 (30) days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The thirty (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 date is later. Direct deposit for payments: Prime 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 Ron Menguita, City of Denton Planning Department, 215 West Hickory Street, Denton, TX 76201. The copy may also be emailed to Mr. Menguita at Ron.Menguita@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 (5) 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 Prime 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. 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 Prime Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Prime 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 Contract 6275-C EXHIBIT 4 payment request approved during the construction of the project shall be paid by the Owner to the Prime Contractor prior to completion of the Project. Upon the approval by the Owner of the Prime Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Prime Contractor of all amounts to which the Prime 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 Prime Contractor. B. The Prime 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 Prime Contractor is in default in respect of any of the provisions of this Contract, and the Owner may withhold from the Prime Contractor the amount of any claim by any third party against either the Prime Contractor or the Owner based upon an alleged failure of the Prime Contractor to perform the work hereunder in accordance with the provisions of this Contract. This includes, without limitation, the alleged failure of the Prime Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Upon award of the Contract, the Prime Contractor shall inform the Owner of the subcontractors and material sources that will be used. Upon the completion by the Prime Contractor of the construction of the Project, but prior to final payment to the Prime Contractor, the Prime Contractor shall deliver to the Owner releases of all liens, and of rights to claim any lien, from all manufacturers, materiamen 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 fully released from all such claims. 5. PAYMENTS TO MATERIALMEN AND SUBCONTRACTORS: The Prime 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 Prime Contractor's Default If default shall be made by the Prime 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 Prime Contractor and the Surety or Sureties upon the Prime Contractor's bond or bonds a written notice requiring the Prime Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Prime Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and/or Architect/Engineer shall be made by the Prime Contractor or its Surety or Sureties, the Contract 6275-C EXHIBIT 4 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 Prime Contractor, and the Prime 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 Prime 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 Prime Contractor may have against third persons in connection with this Contract and for such purpose the Prime 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 City shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of FIVE HUNDRED DOLLARS $500.00 per day for each and every day, including weekends, that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty; if the amount due and to become due from the City to the Contractor is insufficient to pay in full any such liquidated damages, the Contractor shall pay to the City the amount necessary to effect such payment in full: Provided, however, that the City 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 Prime Contractor to complete the construction of the Project within the time herein agreed upon. Contract 6275-C 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor; Contract 6275-C EXHIBIT 4 (2) between the Owner and a Subcontractor or -subcontractor; or (3) between any persons or entities other than the Owner and Prime Contractor. The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect/Engineer's duties. 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 Prime Contractor, or any Subcontractors, Sub -subcontractors, material suppliers, or any other entity for whom the Prime Contractor is responsible, to fulfill the Prime 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. Contract 6275-C EXHIBIT 4 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 Prime Contractor's Bid. 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 Contract 6275-C EXHIBIT 4 (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 Prime Contractor as provided in the Agreement. (b) Execution of the Building Construction Services Agreement by the Prime Contractor is a representation that the Prime Contractor has visited the site, has 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 Prime Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Prime 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 Prime Contractor in dividing the Work among Subcontractor(s) 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. Contract 6275-C EXHIBIT 4 (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 Prime 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; (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) Othe Specifications and Drawings. 1.3OWNERSHIP 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. Contract 6275-C EXHIBIT 4 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 PRIME 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 Prime 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 Contract 6275-C EXHIBIT 4 the Prime Contractor as scheduled and Prime Contractor is not prepared to accept or act on such information or services, then Prime 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 Prime 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. Prime 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 Prime 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 Prime 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 Prime Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Prime 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 Prime 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 Prime 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 Prime 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 written notice from the Owner, the Owner may correct the Prime 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 Prime Contractor from payments then or thereafter due to the Prime Contractor. The cost of correction Contract 6275-C EXHIBIT 4 is subject to verification (but not approval) by the Architect/Engineer. If payments then or thereafter due the Prime Contractor are not sufficient to cover the cost of correction, the Prime 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 Prime Contractor, the Prime 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 Prime 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 Prime 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 "Prime Contractor" means the Prime Contractor or the Prime Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Prime 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 Prime Contractor may discover. The Prime Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Prime 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 Prime 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 Prime 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 Prime Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Prime 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. Contract 6275-C EXHIBIT 4 (b) The Prime 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 Prime Contractor shall supervise and direct the Work, using the Prime Contractor's best skill and attention. The Prime 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 Prime Contractor shall be responsible to the Owner for the acts and omissions of the Prime 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 Prime Contractor, or with any Subcontractor, and all other persons or entities for which the Prime 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 Prime Contractor. (c) The Prime 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 Prime Contractor. (d) The Prime 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 Prime 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 Prime 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 any separate contractor, without the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor. The Prime Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Contractor 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 Prime 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 Prime Contractor shall enforce strict discipline and good order among the Prime Contractor's employees and all other persons carrying out the Contract. The Prime Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Prime 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) residents of the City of Denton, Texas; (2) residents of the County of Denton, Texas; 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, Contract 6275-C EXHIBIT 4 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 TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK; OR, IF A LATENT DEFECT IS DISCOVERED WITHIN TWO YEARS OF SUBSTATIONAL COMPLETION OF THE ENTIRE WORK. (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 Prime 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 Prime 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 Prime 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 Prime Contractor observes that portions of the Contract Documents are at variance with Contract 6275-C EXHIBIT 4 applicable laws, ordinances, construction codes, rules or regulations, the Prime Contractor shall promptly notify the Architect/Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Prime 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 Prime 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 Prime 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 Prime Contractor shall not be required to employ persons or entities against which the Prime 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 Prime 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 Prime 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 Prime Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT The Prime 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 Prime Contractor, and communications given to the superintendent shall be as binding as if given to the Prime Contractor. Important communications shall be confirmed Contract 6275-C EXHIBIT 4 in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Prime Contractor replace its superintendent at any time and the Prime Contractor will replace said superintendent at the Owner's direction. 3.10 PRIME CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Prime 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 Prime 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 Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor's Application for Payment. No such 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 Prime Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Prime 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 Prime 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 PRIME 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 Prime Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Prime Contractor's construction schedule and allows the Architect/Engineer reasonable time to review submittals. (c) The Prime 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 Prime 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 Prime 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. (e) Contract 6275-C EXHIBIT 4 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes and selections made during construction, and in addition shall maintain at the Project site approved 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, materialmen, manufacturer(s), supplier(s), or distributor(s) 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 Prime 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 Prime Contractor which are not required by the Contract Documents may be returned without action. (f) The Prime 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 Prime Contractor represents that the Prime 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 Prime Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Prime 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 Prime Contractor has specifically informed the Architect/Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations Contract 6275-C EXHIBIT 4 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 Prime Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Prime 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 Prime 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 Prime Contractor shall not unreasonably withhold from the Owner or a separate contractor the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime 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 Prime Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Prime Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Prime Contractor fails to clean up as provided in the Contract Documents, the Owner may, at Owner's option, clean up the Project site, and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Prime 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 Prime 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 Prime Contractor shall bear all related costs of tests, inspections, and approvals. The Prime 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 Prime Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Prime 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 Prime Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of Contract 6275-C EXHIBIT 4 repeated procedures and compensation for the Architect/Engineer's services and expenses, if any. The Prime 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 Prime 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 LIABILITIES, 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 PATENT INFRINGEMENT. In the event the Prime Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Prime Contractor shall immediately notify the Owner and the Architect/Engineer of same. 3.19 INDEMNIFICATION (a) THE PRIME CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LIABILITIES, 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 PRIME 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 PRIME CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; Contract 6275-C EXHIBIT 4 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 THIRD PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Prime 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 Prime Contractor or any 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 Prime Contractor specifically agrees to comply with the above- mentioned laws and regulations in the performance of the Work by the Prime 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 Prime 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 - Contract 6275-C EXHIBIT 4 designated Architect/Engineer representative shall be accorded that same status by the Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor, the provisions of the Owner/Architect/Engineer Agreement will be made available to the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime 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 Prime Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Prime 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 Prime Contractor, Subcontractors, Sub -subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Prime Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Prime 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 Prime Contractor. Communications by and with separate contractors will be through the Owner. The Prime 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 Prime Contractor's Applications for Payment, the Architect/Engineer will review and certify the amounts due the Prime 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 Prime 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 Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor as required by the Contract Documents. The Architect/Engineer's review of the Prime Contractor's submittals shall not relieve the Prime 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 Prime 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 Prime 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 Prime 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 the prior written approval of the Owner. Contract 6275-C EXHIBIT 4 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 Prime Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, WITHOUT EXCEPTION, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT/ENGINEER AND TO THE OWNER WITHIN FOURTEEN (14) DAYS IMMEDIATELY AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Prime 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 Prime Contractor by his signature) of the Prime Contractor, verifying the truth and accuracy of the Claim. THE PRIME CONTRACTOR SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURES AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the Prime 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 Prime 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 Prime 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 Contract 6275-C EXHIBIT 4 (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 PRIME CONTRACTOR AT THE PRIME 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 Prime 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 Prime 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 Prime 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; Contract 6275-C EXHIBIT 4 (5) the Owner's temporary suspension of all or any portion of the Work where the Prime Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Prime 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 Prime Contractor asserts a claim to the Prime Contractor, that the Prime Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Prime 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 Prime Contractor to seek and assert such claim against the Owner: (ii) The Prime 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 Prime Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Prime Contractor has agreed to be legally responsible to the Subcontractor for pursuing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Prime 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 Prime 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 Prime Contractor in the claim submittal materials. (ii) The Prime 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 Prime Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Prime Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed by the Contractor to be valid. (iii) The Subcontractor making the claim to the Prime 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 Prime Contractor in the claim submittal materials made by Contractor to the Owner.. Contract 6275-C EXHIBIT 4 (3) Any failure of the Prime 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 against Owner. (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 by applicable law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Prime 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 Prime 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 Prime 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 Prime Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Prime Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Prime 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 Prime Contractor provided within fourteen (14) days after receipt of the Prime Contractor's Claim. If the Owner denies the Prime Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Prime 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 Prime 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 Prime Contractor may initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated by the Prime 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 Contract 6275-C EXHIBIT 4 prorated cost of premium on the existing performance and payment bonds and required insurance; provided however, not to exceed five (5%) per cent, 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(4), 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 APPLICABLE STATE LAW. ARTICLE 5 - SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct Contract with the Prime Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor and the Owner, the Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Prime Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Prime Contractor all the obligations and responsibilities which the Prime 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 Contract 6275-C EXHIBIT 4 subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the Prime Contractor shall require each Subcontractor to enter into similar agreements with Sub -subcontractors. The Prime 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 Prime Contractor is solely responsible for making payments properly to the Prime Contractor's Subcontractors on the Project. During performance of the Work, the Prime Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Prime 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 Prime 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 Prime 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 by Subcontractor 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 FOR PAYMENT. (2) If, for any reason, the Prime Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Prime Contractor shall note the amount withheld and further note that the payment is in dispute. The Owner may, in its sole discretion, require the Prime 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 Prime 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 Prime Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Prime Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE PRIME CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A Contract 6275-C EXHIBIT 4 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 PRIME CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Prime 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 Prime 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, Prime 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 Prime Contractor claims that delay or additional cost is involved because of such action by the Owner, the Prime 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 Prime Contractor, who shall cooperate with them. The Prime Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Prime 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 Contract 6275-C EXHIBIT 4 schedules shall then constitute the schedules to be used by the Prime Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Prime Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Prime Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Prime Contractor's Change Order proposal is denied by the Owner, the Prime 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 Prime 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 Prime 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 Prime Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Prime Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Prime 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 Prime 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 Prime Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the prime Contractor for damages suffered by the Prime 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 Prime Contractor and a separate contractor, the Architect/Engineer or the Owner may furnish the Prime Contractor with written instructions designating priority of effort or change in methods, whereupon the Prime Contractor shall immediately comply with such direction. In such event, the Prime 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 Prime Contractor. (d) The Prime Contractor shall promptly remedy damage wrongfully caused by the Prime 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 Prime Contractor cause damage to the work or property of any separate contractor on the Project, the Prime Contractor shall, upon due notice, settle with the Contract 6275-C EXHIBIT 4 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 Prime Contractor who shall defend such proceedings, at the Prime Contractor's sole expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Prime Contractor shall fully pay or satisfy it and shall reimburse the Owner for any and 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 Prime 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, but is not obligated to do so, and Owner shall allocate the cost among those parties 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 Contract 6275-C EXHIBIT 4 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 not -to -exceed lump -sum amount properly itemized and supported by sufficient substantiating data to permit evaluation; or (2) unit prices stated in the Contract Documents or subsequently agreed upon; or (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the forceaccount 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 on 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 fifteen (15%) per cent. 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 Contract 6275-C EXHIBIT 4 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 worker's compensation insurance; (2) costs of materials, supplies and equipment (but not to include off-site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect/Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Contract 6275-C EXHIBIT 4 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 Prime 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, Ordinance 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 Prime Contractor, or of persons or entities for whom the Prime 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 Prime Contractor, the Prime Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. Contract 6275-C EXHIBIT 4 (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 Prime Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Prime 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 Prime 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. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Prime 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 Prime 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 PRIME 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 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 PRIME CONTRACTOR'S SOLE REMEDY. Contract 6275-C EXHIBIT 4 (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 Prime Contractor shall promptly suspend the Work when either the Prime Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Prime Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Prime 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 Prime 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 Prime 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 Prime Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Prime 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 Prime Contractor or any of the Subcontractors, for which the Prime 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 Prime Contractor is entitled to a time extension, as determined by the Architect/Engineer, Owner may similarly direct acceleration and the Prime Contractor agrees to perform same on the basis that the Prime Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE PRIME 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 Prime Contractor for the performance of the Work under the Contract Documents. Contract 6275-C EXHIBIT 4 Contract 6275-C EXHIBIT 4 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Prime 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 Prime Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Prime 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 Prime 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 Prime 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. Prime 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 Prime Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Prime Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Prime Contractor's Payment Bond Surety consents in writing to payment to the Prime 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 PRIME CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. Contract 6275-C EXHIBIT 4 (d) The Prime 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 Prime 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 Prime 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, Prime Contractor shall, at Prime 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 Prime Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Prime Contractor's sole expense, and amounts may be withheld from the Prime 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, and if performance and payment bonds are not furnished by the Contractor, then 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 Prime Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Prime Contractor, for such amount as the Architect/Engineer determines is properly due, or notify the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime 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 Prime Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Prime 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 Prime 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 five percent (5%) 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 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 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor as provided in Subparagraph 9.4(a). If the Prime 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 Prime 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 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 all of the above reasons that existed for withholding certification are removed or remedied, then, at that time, 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 Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor default remains uncured. (b) The Prime Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Prime 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 Prime Contractor on account of such Subcontractors portion of the Work. The Prime 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 Prime 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 Prime Contractor or, in the event of the Prime 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. Contract 6275-C EXHIBIT 4 (b) When the Prime Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Prime Contractor shall prepare and submit to the Architect/Engineer a comprehensive list of remaining items to be completed or corrected. The Prime 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 Prime 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 Prime 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 Prime Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor considers a portion Substantially Complete, the Prime Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Prime Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the Contract 6275-C EXHIBIT 4 progress of the Work shall be determined by written agreement between the Owner and Prime Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Prime 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 Prime 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 Prime 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 Prime Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Prime 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 Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor's affidavit under Clause (b)(1) shall state that the Prime Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to Contractor for the Work performed under this Contract. In the event the Prime Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Prime 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 PRIME 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 Prime Contractor or by issuance of Change Orders affecting final completion and the Architect/Engineer confirms the delay, the Owner shall, upon application by the Prime 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 Prime 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 Prime 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 Prime Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: Contract 6275-C EXHIBIT 4 (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 Prime Contractor or the Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall furnish the Owner and the Architect/Engineer with evidence of insurance sufficient to cover possible damage or injury, which insurance shall either Contract 6275-C EXHIBIT 4 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 and conspicuously: "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 Prime 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 Prime 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 Prime Contractor of any responsibility for damage resulting from any blasting operations. (f) The Prime 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 Prime 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 Prime 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 Prime Contractor or any of its Subcontractors. The foregoing obligations of the Prime Contractor are in addition to the Prime 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 Prime 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 Prime Contractor shall designate a responsible member of the Prime Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Prime Contractor's superintendent unless otherwise designated by the Prime Contractor in writing to the Owner and Architect/Engineer. (h) The Prime 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 Prime Contractor shall act, at the Prime Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Prime Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. Contract 6275-C EXHIBIT 4 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Prime 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 Prime 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 Prime 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 Prime Contractor's neglect shall be deducted from the Contract Sum. The Prime 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 Prime 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 Prime Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Prime 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 Prime Contractor shall, at the Prime 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 Prime 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 Prime 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 Prime Contractor at Prime Contractor's cost and expense. The Prime 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. Contract 6275-C EXHIBIT 4 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Prime 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 Prime Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Prime Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Prime 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 Prime Contractor shall provide and maintain, at the Prime Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Prime Contractor shall, at the Prime 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 Prime Contractor desires to use the Owner's water in connection with the Work, the Prime Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Prime 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 Prime 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 Prime Contractor shall pay for all electricity used in the performance of the Work through Contract 6275-C EXHIBIT 4 separate metered electrical connections obtained by the Prime Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Prime Contractor or any of its Subcontractors, the Prime Contractor shall be responsible for remediating the condition at the sole expense of the Prime Contractor in accordance with the Prime 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 Contract 6275-C EXHIBIT 4 and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Prime 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 Prime Contractor or any Subcontractor or Supplier. The Prime 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 Prime 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 Prime 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 Prime Contractor's planned work methods and procedures. The SPRP shall be designed to complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty-four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Prime 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 Prime Contractor or a Subcontractor: (1) The Prime 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 Prime Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Prime Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Prime 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 Prime 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 Prime Contractor's records for reference purposes, to be provided upon request of Contract 6275-C EXHIBIT 4 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 PRIME 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor's records for reference purposes, to be provided upon request to the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. (g) The Prime 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 Prime 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 Prime 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 Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor and approved by the Owner; (2) if the Prime Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Prime 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 PRIME CONTRACTOR'S INSURANCE Prime 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 Prime 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. 11.3 `UMBRELLA' LIABILITY INSURANCE Prime 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 Prime 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. 11.5 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.5(b), the Prime Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Contract 6275-C EXHIBIT 4 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 Prime Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.5(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) years 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 $50,000, Payment bonds in 100% of the Contract Sum are mandatory and shall be required to be provided by the Contractor. If the Contract Sum is greater than $100,000, a Payment Bond and Performance Bond in 100% of the Contract amount is mandatory. (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 Prime 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) Contractor will be required to furnish original performance and payment bonds for 100 percent of the total submission price 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, from a surety licensed to do business in the State of Texas. The City, at its Contract 6275-C EXHIBIT 4 option, may waive the payment and performance bond requirements for projects of less than $50,000. Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from contract award. This contract is not fully executed until payment and performance bonds are received and accepted by the City. Upon approval, a purchase order will be issued. (e) The failure of the Contractor to deliver the required statutory bonds and evidence of insurance within fourteen (14) calendar days after the Contract is awarded shall constitute a material breach of the Prime 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 Prime Contractor's failure to execute and furnish the statutory bonds within fourteen (14) calendar days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.5(e). In the event the Owner should re -advertise for bids, the defaulting Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor shall bear costs of correcting such rejected Work, Contract 6275-C EXHIBIT 4 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 Prime 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 Prime Contractor a written acceptance or waiver of the defect or nonconformity. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor nor accepted by the Owner. (f) If the Prime 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 Prime 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 Prime Contractor's expense. If the Prime Contractor does not pay costs of removal Contract 6275-C EXHIBIT 4 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 Prime 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 Prime Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Prime Contractor then or thereafter are not sufficient to cover the deficiency, the Prime Contractor shall pay the difference to the Owner. (g) The Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor's liability with respect to the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor and the Prime 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 Prime Contractor and the Surety. If for any reason the Prime 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 Prime Contractor, including but not limited to the following causes: (1) Failure or refusal of the Prime 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 Prime Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Prime 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 Prime 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 Prime 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. Contract 6275-C EXHIBIT 4 (10) The filing by the Prime 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 Prime 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 Prime Contractor and the surety or its authorized agents, assume the obligations of the Prime Contractor for the Work or that portion of the Work which the Owner has ordered the Prime 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 Prime Contractor's default. In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Prime 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 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 Prime 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 Prime Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Prime 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 Prime 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 Prime Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred Contract 6275-C EXHIBIT 4 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 Prime 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 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 Prime Contractor, then the Owner may pay to the Prime Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Prime 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 Prime Contractor, then the Prime 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 Prime 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 unconditional right to terminate this Contract for the convenience of the Owner (including but not limited to non -appropriation 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 Prime Contractor. Upon the Prime Contractor's receipt of such written notice, the Prime Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Prime 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 Prime 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 Prime 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 Prime Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; Contract 6275-C EXHIBIT 4 (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or (4) other unforeseen conditions or circumstances. (b) The Prime 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 Prime 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 Prime 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 Prime 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 (a) This Contract shall be in all things governed by the laws of the State of Texas without regard to conflict of laws principles. (b) 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 Contract 6275-C EXHIBIT 4 The Owner and the Prime 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 Prime 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 Prime 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 Prime Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. This Contract is considered personal as to the Contractor. 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 Prime 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 Prime Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer Contract 6275-C EXHIBIT 4 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 Prime Contractor is that of an independent contractor. The Prime 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 Prime Contractor an agent, servant, or employee of the Owner, or making the Prime Contractor or any of the Prime 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 Prime Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Prime 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 Prime 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 Prime Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Prime 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 Contract 6275-C EXHIBIT 4 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 Prime Contractor to remove any employee of the Prime 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 Prime 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 Prime Contractor grants the Owner the right to audit, at the Owner's election, all of the Prime Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Prime 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 Prime 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. Prime 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. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Contractor terms and conditions Contract 6275-C EXHIBIT 4 EXHIBIT D PAYMENT AND PERFORMANCE BOND REQUIREMENTS Contractor will be required to furnish original performance and payment bonds for one hundred (100%) percent of the total submission price 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, from a surety licensed to do business in the State of Texas. The City, at its option, may waive the payment and performance bond requirements for projects of less than $50,000. Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from contract award. This contract is not fully executed until payment and performance bonds are received and accepted by the City. Upon approval, a purchase order will be issued. Contract 4 6275-C 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. Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. Contract 4 6275-C EXHIBIT 4 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Contract 4 6275-C EXHIBIT 4 • 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. 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 Contract 4 6275-C EXHIBIT 4 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 type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Contract 4 6275-C 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: 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 4 6275-C 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 aproject, 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 Contract 4 6275-C EXHIBIT 4 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. Contract 4 6275-C 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: htlps://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 purchasingLcilyofdenton.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. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN File #: ID 17-695, Version: 1 Legislation Text AGENDA CAPTION Hold a discussion and give staff direction on the recruitment process for a new City Attorney. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Human Resources CM/ DCM/ ACM: Bryan Langley DATE: June 6, 2017 SUBJECT Hold a discussion and give staff direction on the recruitment process for a new City Attorney. BACKGROUND On January 6, 2017, city attorney Anita Burgess submitted her notice of retirement to be effective in February of 2017. Based on a subsequent discussion with the Mayor, Anita changed her retirement date to be effective March 31, 2017, but her last day in the office was February 10, 2017. At the January 24, 2017, staff brought back a proposal from Waters & Company to conduct a search for a City Attorney, per the direction of the Agenda Committee. During this meeting, the Council decided to defer a search and appoint Aaron Leal as the Interim City Attorney. Resolution R2017-003 was signed on February 7, 2017, appointing Aaron as the Interim City Attorney effective February 11, 2017. At the May 9, 2017, City Council meeting, Councilmember Wazny requested Council have a discussion during their June 61' meeting on hiring a firm to conduct the City Attorney search. OPTIONS Contract with an executive recruitment firm to conduct the search; conduct the search in-house with the assistance of the Human Resources staff, or forego a search and appoint from within. FISCAL INFORMATION In January of 2017, Waters & Company quoted an all-inclusive professional fee of $21,000. This fee reflected a discount from the fee of the City Manager process ($24,500) and the City Auditor process ($21,500). Additional work specifically requested by the City which is outside of the scope of this project will be invoiced at the hourly rate of $220 plus expenses. Staff would need to check with Waters to determine if this quote still stands. 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 Respectfully submitted: Carla Romine Director of Human Resources City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN File #: ID 17-734, Version: 1 Legislation Text AGENDA CAPTION Consider approval of the appointment of Council Member John Ryan as an alternate member of the Regional Transportation Council. City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton DENTON AGENDA INFORMATION SHEET DEPARTMENT: City Manager's Office CM/ DCM/ ACM: Deputy City Manager Bryan Langley DATE: June 6, 2017 SUBJECT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com Consider approval of the appointment of Council Member John Ryan as an alternate member of the Regional Transportation Council. BACKGROUND The North Central Texas Council of Governments Regional Transportation Council (RTC) is the independent transportation policy body of the federally mandated Dallas -Fort Worth Metropolitan Planning Organization and is comprised of 44 members, 37 local elected or appointed officials representing cities and counties, and representatives from each of the area's seven transportation providers. The RTC is responsible for overseeing the metropolitan planning process including primary activities such as providing guidance regarding the development of multimodal transportation plans and programs, programming federal and State funds for the implementation of transportation improvements, selecting specific federally funded projects and programs, assuring the coordination of services among transportation providers, and ensuring compliance with federal and State laws and regulations pertaining to metropolitan transportation and air quality planning. In accordance with the Bylaws and Operating Procedures of the RTC, the local elected official representing the cities of Denton, Sanger, Corinth, and Lake Dallas on the RTC shall be selected using a weighted vote of the maximum population or employment of the cities represented. The City of Denton, pursuant to the Bylaws, possesses the authority to appoint the representative and an alternate on behalf of the above-described group of cities to the RTC. Currently Mayor Pro Tem Bagheri serves as the primary representative with former Mayor Pro Tem Roden having served as alternate. Council Member Ryan has expressed an interest in serving in the now vacant position of alternate representative. If approved, the RTC will be notified of the appointment of Council Member Ryan. 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: Related Goal: EXHIBITS Prepared by: Jennifer Walters City Secretary Public Infrastructure 2.2 Seek solutions to mobility demands and enhance connectivity Respectfully submitted: Bryan Langley Deputy City Manager City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEWON Legislation Text File #: Z16 -0030b, Version: AGENDA CAPTION Hold a public hearing and consider adoption of an ordinance to rezone approximately 0.4 acre from a Downtown Residential 1 (DR -1) District to a Downtown Residential 2 (DR -2) District. The property is generally located on the west side of Neff Street, 175 feet north of Greenlee Street in the City of Denton, Denton County, Texas; adopting an amendment to the City's official zoning map; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (4-2). (Z16-0030) City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services CM: Todd Hileman DATE: June 6, 2017 SUBJECT Hold a public hearing to consider adoption of an ordinance to rezone approximately 0.4 acre from a Downtown Residential 1 (DR -1) District to a Downtown Residential 2 (DR -2) District. The property is generally located on the west side of Neff Street, 175 feet north of Greenlee Street in the City of Denton, Denton County, Texas; adopting an amendment to the City's official zoning map; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommended approval (4-2) of the request. (Z16-0030) BACKGROUND The applicant is requesting to rezone the subject property from Downtown Residential 1 (DR -1) District to Downtown Residential 2 (DR -2) District. The property was developed with two homes which were razed in 2016. The applicant has indicated that she would like to redevelop the site with a multi -family development, a use not permitted under the DR -1 District, therefore, the request to rezone. The subject property is situated mid -block on Neff Street within a neighborhood primarily developed with single-family structures built between 1921 and 1966 and duplexes built in the last ten years. All of the properties on Neff Street and nearby neighborhood streets to the east have a zoning designation of DR -1 District, creating a zoning pattern that maintains uniform permitted uses and development scale within the existing neighborhood. Some parcels to the west and south of the subject property are zoned DR -2 and Downtown Commercial General (DC -G) District and developed with multi -family and commercial structures. However, these parcels are located on the fringe of the neighborhood, adjacent to Collector streets which connect to I -35E. The proposed DR -2 District is inappropriate at this location, as it would interrupt the existing zoning pattern at the block level and break the continuity of the consistent DR -1 District on Neff Street and the surrounding neighborhood. Furthermore, the proposed DR -2 District could result in small scale commercial and multi- family development inconsistent with the surrounding single-family and duplex uses, which would erode the already fragile cohesiveness and character of the neighborhood. While the zoning request meets the intent of the Neighborhood/University Compatibility Area Designation, zoning must be sensitive to the character of the surrounding established neighborhood. Previous rezoning for small, individual lots has created the surrounding area's fragmented zoning pattern, reducing the ability for cohesive redevelopment and affecting the integrity of the established neighborhoods. Although this area may transition to a denser development pattern in the future, this transition should be achieved after a careful study of the surrounding area to create a comprehensive zoning plan which conforms to the goals of the Denton Plan 2030 and creates compatible land uses and forms. Currently, the existing zoning is consistent with the adjacent land use pattern of single-family and duplex developments. Therefore, if approved, DR - 2 District could potentially introduce a new land use pattern in the middle of a neighborhood, thus compromising the surrounding neighborhood. To comply with the public hearing notice requirements, 26 notices were sent to property owners within 200 feet of the subject property, 72 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. As of this writing, one response in opposition has been received. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning Division recommends denial of the request, as a change in zoning for a small parcel located in the middle of a block would break the continuity of the existing zoning pattern, affecting the integrity of the existing neighborhood, and potentially impeding the redevelopment of this area in a comprehensive manner. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The public hearing for the rezoning request was opened at the March 22, 2017, Planning and Zoning Commission (P&Z) meeting; however, prior to the meeting, the applicant requested a postponement to April 12, 2017. During discussion at the April 12th P&Z meeting, the Commissioners agreed that the area is transitioning to higher density development, as multifamily is being constructed on the edges of the neighborhood. However, concern was raised that the rezoning request was premature, since the block -level zoning and land use pattern is consistent with DR -1 District. The Director of Development Services, Munal Mauladad, was asked to address the Commission regarding the timing of the proposed rezoning. She remarked that the proposed rezoning is not appropriate at this time; however, a forthcoming small area plan for the neighborhoods surrounding the University of North Texas may indicate the need for a future comprehensive rezoning program for the entire area. Only one neighbor spoke in opposition to the proposed rezoning, stating that the recent construction of new multi -family development in the area is incompatible with the existing single-family housing and is displacing families in favor of students. At the closure of the public hearing, the P&Z Commission made a motion to deny the request due potential incompatibilities between the proposed DR -2 District and the adjacent properties. This motion failed and a new motion was made to approve the request. This motion passed 4-2. 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: Economic Development Related Goal: 3.4 Encourage development, redevelopment, recruitment, and retention EXHIBITS 1. Agenda Information Sheet 2. Staff Analysis 3. Site Location/Aerial Map 4. Existing Zoning Map 5. Future Land Use Map 6. Permitted Use Comparison 7. Proposed Zoning Map 8. Public Notification Map and Response 9. Presentation 10. Planning and Zoning Commission Meeting Minutes 11. Draft Ordinance Respectfully submitted: Munal Mauladad Director of Development Services Prepared by: Julie Wyatt Senior Planner Planning and Zoning Commission Meeting Minutes 1 constricted in compliance with Section 35.13.9, as amended. 6. Landscape buffers shall be 2 provided in accordance with Section 35.13.8, as amended. Permit self-service storage in CM -G 3 District with an SUP and L (35). Modify Employment Center Commercial (EC -C) and 4 Employment Center Industrial (EC -I) Districts to require a Special Use Permit (SUP) and L (35) 5 for self-service storage. Currently the use is permitted without limitation. 6 7 Staff recommends approval of the request with a condition, as it is consistent with the goals and 8 objectives of the Denton Plan 2030: 1. Revise the proposed L (35) to include the following: a. all 9 individually leased storage units must be contained within a climate -controlled building. 10 11 Chair Strange questioned if all storage units would have to be climate controlled. Wyatt stated yes 12 within CM -G, EC -C and EC -I zoning districts. Jarvis stated CM -G is usually built next to 13 residential lots and staff wants to keep the land use and scale compatible with the residential areas. 14 Chair Strange stated when he has seen climate control storage units they are usually smaller and 15 taller. 16 17 Chair Strange questioned if there will be a height limitation. Wyatt stated CM -G will allow for a 18 height of 65 feet. Commissioner Ellis stated this does not seem complimentary to a residential 19 neighborhood. Jarvis stated CM -G already allows 65 feet in height which is around 5 stories. 20 21 Commissioner Beck stated an SUP will help by restricting the height for the unit. Commissioner 22 Ellis questioned how staff came tip with the requirement all individually leased storage units must 23 be contained within a climate -controlled building. Wyatt stated CM -G districts are typically 40 24 acres and are intended to be mixed use and to provide lots of different uses. 25 26 Commissioner Hudspeth questioned Legal if the Commission could ask the applicant questions 27 during the Work Session. Jennifer DeCurtis, Assistant City Attorney, stated since this is a 28 clarification item it would be better to speak to the applicant during the Regular Meeting. 29 30 Commissioner Rozell questioned the requirements regarding the percentage of glass and the bay 31 doors and how staff expects the developer to build a building with 70 percent windows without 32 seeing a bay door. Wyatt stated it can be tip to 70 percent windows. 33 34 Chair Strange questioned if we remove the L35 stipulation and just keep the SUP requirement if 35 it allows the applicant more flexibility. Wyatt stated the limitations were designed based upon 36 what other Cities have done as well as part of the applicant's request. 37 38 DeCurtis redirected the Commission to hold certain comments for the Regular Meeting. 39 40 Jarvis stated public hearing item C has been withdrawn by the applicant and Public Hearing item 41 D has been postponed to April 26 2017. 42 43 Wyatt presented Public Hearing item E. The request is to rezone approximately 0.4 acres from 44 Downtown Residential 1 (DR -1) to Downtown Residential 2 (DR -2). By changing the zoning to 45 DR -2 it could potentially introduce a new land use pattern and compromise the integrity of the 46 neighborhood. N 1 2 Commissioner Beck questioned if DR -1 allows duplexes. Wyatt stated yes DR -1 does permit 3 duplexes and DR -2 also permits duplexes. Wyatt continued to state DR -2 also permits small scale 4 commercial. Staff recommends denial due to the isolated zoning district which could impede the 5 development of this area in a cohesive manner. 6 7 Vice -Chair Taylor stated there are multiple parcels of DR -2 mixed in with DR -1 in this area. The 8 area has been allowed is to piecemeal zone into more dense categories. Vice- Chair Taylor 9 questioned if there is a cohesive plan to rezone this area. Wyatt stated yes there is a proposed Small 10 Area Plan around University of North Texas (UNT). Jarvis stated the Small Area Plan is currently 11 under way and a Request for Qualifications (RFQ) was issued at the beginning of the week. Jarvis 12 commented on spot zoning and explained we may not have rezoned the parcels appropriately in 13 the past, and staff does not encourage it. or is legally able. Jarvis commented that we may not 14 legally be able to rezone this single parcel in this manner. 15 DeCurtis stated if it is City initiated then staff and the Commission have to be carefiil and mindful 16 not to spot zone, unless the purpose is to comply with the fiiture land use map, then it would be 17 allowed. 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 Chair Strange stated he doesn't see an issue bumping up the zoning to DR -2. Commissioner Ellis stated there is a lot going on in this area and looks like multifamily. Chair Strange closed the Work Session at 5:25p.m. The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, April 12, 2017 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time the following items were considered: NOTE: The Planning and Zoning Commission reserves the right to adjourn into a Closed Meeting on any item on its Work Session or Regular Session agenda consistent with Chapter 551 of the Texas Government Code, as amended, including without limitation, Sections 551.071-551.086 of the Texas Open Meetings Act. Chair Strange opened the Regular Meeting at 6:30 p.m. WgInelmroffel A. Consider..a.re_quest.by Jeffrey Bassinger for approval of a Final Plat of the Bas singer. Addition, Lot 1 Block A. The 4.32 acre site is generally located on the east side of Fort Worth Drive, approximately 1,045 feet north of Brush Creek Road. LFP 16-0039, Bassinger Addition, Haley Za urski . 3 2 Chair Strange opened the Public hearing. 3 4 Julie Wyatt, Senior Planner, stated the applicant has requested to postpone Public Hearing item D 5 until the April 26, 2017 Planning and Zoning meeting. 6 7 Chair Jim Strange motioned. Vice -Chair Devin Taylor seconded to postpone Public Hearing item 8 D until April 26, 2017. Motion approved (6-0). Vice -Chair Devin Taylor "aye", Commissioner 9 Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner 10 Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". 11 12 E. Hold a public hearing and consider a reduest by Apire Investments, LLC. to rezone 13 approximately 0.4 acre from a Downtown Residential 1 (DR -1) District to a Downtown 14 Residential..2 (12R-2) District. The property is generally located on the west side of Neff Street, 15 175 feet north of Greenlee Street. This item was continued at the March 22, 2017 Planning and 16 Zoning Commission meeting. (Z16-0030, The Cube Properties, Julie Wil. 17 18 Chair Strange opened the Public Hearing. 19 20 Julie Wyatt, Senior Planner, presented Public Hearing Item E. Wyatt stated the request is to rezone 21 approximately 0.4 acres from Downtown Residential 1 (DR -1) to Downtown Residential 2 (DR - 22 2). Wyatt stated staff recommends denial, as a change in the zoning would create an isolated zoning 23 district which could impede the development of this area in a cohesive manner. 24 25 Chair Strange questioned Wyatt why staff is not in support when there is already a higher zoning 26 designation within a half a lot away. Wyatt stated staff did look at the zoning pattern on the edges 27 of the neighborhood, however because of the cohesive zoning pattern on this street and within the 28 block this would isolate the zoning district. Chair Strange stated he could understand the decision 29 if the development was on the block to the east. Wyatt stated since this block is on Neff Street and 30 Neff Street is zoned DR -1 staff believes it's important to maintain. 31 32 The following individuals wished to speak: 33 Mikey Patterson, 8805 Random Road, Fort Worth, Texas 76179. Supports this request. 34 David Sutcliffe, 1219 Ave A, Denton Texas, 76201. Opposed to this request. 35 36 Mickey Patterson the applicant presented a presentation. Patterson stated the design is shipping 37 container apartments. Patterson stated he did reach out to surrounding property owners but were 38 either unable to contact them or there was little response. 39 40 Commissioner Rozell questioned if they would replat both lots after the rezone. Patterson stated 41 yes that is the goal. Chair Strange questioned why the applicant wants to rezone. Patterson stated 42 in DR -1 you can only develop duplexes not multifamily. 43 44 Commissioner Beck stated he believes Patterson would want to fit in with the neighborhood and 45 shipping containers are not ideal and are not going to transition well. Patterson stated he disagrees 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 with Commissioner Beck and even with a straight masonry build the property should still be rezoned to DR -2. Chair Strange closed the Public Hearing. Commissioner Hudspeth stated this development seems to be before its time. Patterson stated they want to develop something trendy and modular. Jennifer DeCurtis, Assistant City Attorney, stated the Commission will not be allowed to apply an overlay because there is not a commercial component buffering the property. Commissioner Rozell stated Neff Street's character is changing and becoming a more dense area with the current development. Chair Strange stated this area is transitioning to become a multifamily area. Chair Strange requested the opinion of Munal Mauladad, Director of Development Service regarding this item. Mauladad stated staff does not believe it's feasible to rezone this property at this time. Chair Strange stated he is having a hard time agreeing with staff with all the multifamily in this area. Chair Strange requested the direction the Small Area Plan. Shandrian Jarvis, Development Review Committee Administrator, stated its still at the beginning phase and staff will receive public input, but at this point this area is in the study area boundaries. Commissioner Rozell questioned if the Small Area Plan would contradict the vote from the April 12, 2017 Planning and Zoning Commission meeting. Mauladad stated it would and with the implementation of Small Area Plan it could result in another zoning change. Commissioner Rozell questioned the timeline for the Small Area Plan. Mauladad stated it is approximately an eighteen month program. Commissioner Larry Beck motioned. Commissioner Gerard Hudspeth seconded to deny Public Hearing item E. Motion denied (2-4). Commissioner Larry Beck "aye", and Commissioner Gerard Hudspeth "aye". Vice -Chair Devin Taylor "nay", Commissioner Andrew Rozell "nay", Chair Jim Strange "nay", and Commissioner Margie Ellis "nay". Vice -Chair Devin Taylor motioned. Commissioner Margie Ellis seconded to approve Public Hearing item E. Motion approved (4-2). Vice -Chair Devin Taylor "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", and Commissioner Margie Ellis "aye". Commissioner Larry Beck "nay", and Commissioner Gerard Hudspeth "nay". 4. PLANNING & ZONING COMMISSION PROJECT MATRIX A. Planning and Zoning Commission project matrix. Chair Strange requested to explore in a Work Session the possibility of adding the financial aspects of the cases that come before the Planning and Zoning Commission. N. S:ALegal\our Documents\0rdinances\1 7\/,16-0030.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING A CHANGE IN THE ZONING CLASSIFICATION FROM A DOWNTOWN RESIDENTIAL 1 (DR -1) ZONING DISTRICT AND USE CLASSIFICATION TO A DOWNTOWN RESIDENTIAL 2 (DR -2) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 0.04 ACRES OF LAND GENERALLY LOCATED ON THE WEST SIDE OF NEFF STREET, 175 FEET NORTH OF GREENLEE STREET IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z16- 0030) WHEREAS, Aspire Investments, LLC, property owner, has applied for a zoning change for approximately 0.40 acres of property legally described in Exhibit "A" and of which the location is shown in Exhibit "B" (hereinafter, the "Property") from a Downtown Residential -1 (DR -1) Zoning District & Use Classification to a Downtown Residential -2 (DR -2) Zoning District & Use Classification; and WHEREAS, on April 12, 2017, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (4-2) of the change in zoning district and use classification; and WHEREAS, on June 6, 2017, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the property , have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The zoning district and use classification for the Property is hereby changed for approximately 0.40 acres from Downtown Residential 1 (DR -1) District to Downtown Residential 2 (DR -2) District. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification for the Property. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY mob APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY C\.. BY: �x be '� Exhibit A Legal Description QLD NOTE DESCRIPTION FOR 4.198 ACRE TRACT: BEING 10.198 art tract of land situated in the F. Puohaiski Survey, Abstract No. 996, in the City of Denton, Denton County, Texas, and bring a portion of Block I of 0.1.1. Greenlee Addition, an addition to (be City of Denton, Denton County, Texas, according to the Istat thereof recorded in Volutne 75, Page 141, of the Dead Records of Denton County, Texas (D.R.D.C.T.), and being that certain tract of land described by deed to fiemasco International, LLC, a Texas limited liability company, as recorded it Document No. 2009-120779, of the Real Property Records of Denton County. Texas (R.P.ILD.C.T.),and being more particularly described as follows: BEGINNING at a Yz inch iron read foumd for the southeast corner of the herein described tract, sane being the northeast cortaca of that certain tract of land descnInd by deed to Fainvest, LTD, a Texas limited partnership, as recorded in Document No. 2015-83651, R.P,R.D.C.T., and being in the west line ofNeff Street (a 40 foot wide right-of-way); THENCE North 88 degrees 43 minutes 51 seconds West, with the north line of said Fammst need, a distance of 147.83 feet to a fence coiner post found for corner, same being in the east line of that certain tract of land descrtlred by deed to Monty E. Spam and wife. CAR P. Kelly -Sparks and Scats M. Sparks, as nvorded in Document No. 2006-21006, R.P.R.D.C.T.; THENCE North 01 degrees 39 minutes 51 seconds East, with Ute cast line of said Sparks tract, passing m route the southeast corner of that certaitt tract of land described by deed to Victor E. Laudcrdalc and wife, Juanita Io Lauderdale, as recorded in Volume 361, Page 586, DILD.C.T., wing on said course for a total distance of 58.63 feet to a fence coater post found for cornea, satrne being the southwest corner of that certain tract of land descanted by deed to Joe Pennington, as recorded in Volume 5046, Page 1849, R.PILD.C.T.; THENCE South 88 degrees 52 minutes 18 seconds Fast, with Ute south litre of said Pennington tract, a distance of 146.12 feet to a % ineb irou tend found for comer, same being in the west line of said Neff Strut THENCE South 00 degrees 00 minutes 00 seconds west, with the west line of said Neff' Street, a distance of 59.00 feet to the POINT OF BEGINNING and containing a total of 0.198 acres of had, more or less, and being subject to any and all easements that may affect. FIELD NOTE DESCRIPTION FOR 0.170 ACRE TRACT: BEING a 0.170 acre tract of land situated in the E. PuchalAi Survey, Abstract No, 996. in the City of Denton,. Denton County, Texas, and being a portion of Block I of C.M. Greenlee Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Volu= 75, Page 141, ofthe Deed Records of Denton Country, Texas (D.R.D.C.T.). and being that certain tract of bmd described by deed to laamvest, LTD, a Texas limited partnership, as recorded m Document No. 2015-83651, ofthe Regi Property Records of Deaton County, Texas (R.P.R.D.C.T.), and bti;ng macre particularly, described as follows: BEGINNING at a''A `etch iron rod found for the northeast confer of the herein descrttbed tract, same being the southeast cancer of that certain tract of land described by deed to Remasoo International. LLC, a Texas lir nited liability company, as recorded in Document No. 2009-120779, KPILD.C.T., and being in the west line of Neff Street (a 40 foot wide right-of-way); THENCE South 00 degrees 00 minutes 00 seconds West, with the west lim of said Neff Street, a distance of 50.00 feet to a % inch iron rod found for corner, same being the northeast corner of that certain tract of land des'cr'ibed by deed to Shelly R. Eason, as recorded in Volume 2820, Page 596, R.P.R.D.C.T.; rEWNCE North 89 degrees 37 minutes 06 seconds Wcsk with the north line of said Eamn tract, passing at a distance of 125.62 feet a h inch iron rod found for the northeast coroner of that certain tract of land described by deed to Veronica T. Hemi and busband, Daniel Hernarsdeg, as recorded in Document No. 2012-145721, R..P.R.D.C.T., continuing on said course for a total distance of 149.28 feet to a fence comer post found for comer, same being the southeast corner of that certain tract of land described by deed to Monty 8. Sparks and wife, Gail P.Kelly-Spam and Sam M. Spask,as r recorded in Document No. 2006-21006, R.PJLD.C. i.; THENCE North 01 degrtes 39 minutes 51 seeo tads Fisk, with the cast line of said Sparks but, a distance of -49.70 feet to a fence corner post found for corner, same being the southwest comer of said Remasco International tract; THENCE South 88 degrees 43 minutes 51 scoo3n4s East, with the south line of said R cmasco International tract, a distance of 147.83 feet to the POINT OF BEGINNING and containing a total of 0.170 accts of land, more or less, and being subject to any and all easements that may affect. Exhibit B Location Map Z16-0030 Site Location j i 'i j i i SITE i j i i o w eo +20 Parcels DENTON Roads oewrnera saMces . ass L D _W% to, a :,iai es n,e� are „u: w+:��n, r, s ++r,e car or oc.,roo an sroo�W n +ve e>ea r r ii a+ so,� - res��a rxine<+or rc+e ��: �,vose� r ue g n o+ I �kXYzfeSovaFc kis as"n�'y i°;nre45ea�an� iavcn smaPln+B a,su�e i $ aaccapia<cMins' iRme°8 es v� + � Cune aacuraie.+ioma�noo�ae"�owR le, e dor City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: Z16 -0030a, Version: Planning Report Z16-0030 / The Cube Properties City Council District 3 Planning & Zoning Commission April 12, 2017 REQUEST: Hold a public hearing and consider a request by Aspire Investments, LLC. to rezone approximately 0.4 acre from a Downtown Residential 1 (DR -1) District to a Downtown Residential 2 (DR -2) District. The property is generally located on the west side of Neff Street, 175 feet north of Greenlee Street. This item was continued at the March 22, 2017 Planning and Zoning Commission meeting. (Z16-0030, The Cube Properties, Julie Wyatt). OWNER: Aspire Investments, LLC APPLICANT: Sherry Patterson BACKGROUND: The applicant is requesting to rezone the subject property from Downtown Residential 1 (DR -1) District to Downtown Residential 2 (DR -2) District. The property was developed with two homes which were razed in 2016. The applicant has indicated that she would like to redevelop the site with a multi -family development, a use not permitted under the DR -1 District. Therefore, the applicant is seeking a zoning change to DR -2 District. SITE DATA: The subject property is located mid -block on Neff Street, approximately a quarter -mile south of the University of North Texas (UNT) campus. Two single-family structures were removed from the site in 2016, and the property is now vacant. Neff Street is classified as a Residential Avenue Collector, which is designed to provide access for residential uses and accommodate up to 10,000 vehicle trips per day. Neff Street is not constructed to Residential Avenue Collector standards. USE OF PROPERTY UNDER CURRENT ZONING: The Downtown Residential 1 (DR -1) District is a residential zoning district that is intended to protect traditional, walkable neighborhoods located adjacent to established downtown and university areas. Permitted uses include single-family dwellings, accessory dwelling units, duplexes, live/work units, and adult or child daycares. Bed and breakfasts are permitted with a limitation, and dormitories and fraternity and sorority houses are permitted with a specific use permit (SUP). Commercial uses are limited to home occupations. The maximum permitted density is 8 dwelling units per acre, and the minimum residential unit size is 700 square feet. Lots must include a minimum of 4,000 square feet, and the maximum lot coverage with impervious City of Denton Page 1 of 4 Printed on 4/7/2017 powered by I._eggl;>karI File #: Z16 -0030a, Version: 1 surface is 60%. The permitted use comparison chart has been included for reference. SURROUNDING ZONING AND LAND USES: North: Property to the north is zoned DR -1 District and is developed with single-family residences and duplexes. East: Property to the east is zoned DR -1 District and developed with single-family residences and duplexes. South: Property to the south is zoned DR -1 District and developed with single-family residences. Property across Greenlee Street is zoned DR -1 and DC -G Districts and developed with a religious institution, a hotel, a children's residential facility, and single-family residences. West: Property to the west is zoned as DR -1, DC -G, and DR -2 Districts and developed with single- and multi -family uses. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The subject property is situated within a neighborhood that is primarily developed with single-family and duplex uses. The surrounding zoning of DR -1 District reflects this land use pattern. The requested DR -2 District would permit small scale commercial and multi -family development inconsistent with the surrounding uses and zoning. If approved, the proposed rezoning would introduce a new zoning district into an existing cohesive zoning and development pattern, creating an isolated zoning district, potentially resulting in the development of incompatible uses at the block level. The minimum lot size in DR -2 District is 4,000 square feet, the maximum building height is 45 feet, the maximum density is 30 dwelling units per acre, and the maximum lot coverage is 75%. COMPREHENSIVE PLAN: The subject property is within an area designated as a "Neighborhood/University Compatibility Area" on the Future Land Use Map in Denton Plan 2030. This land use designation applies to residential and commercial areas adjacent to university areas characterized by university buildings abutting, in many cases, single-family neighborhoods. The purpose of this designation is to create compatible form and land uses for the areas that serve both the established neighborhoods and the universities. CONSIDERATIONS: 1. The request is to rezone the subject property from DR -1 District to DR -2 District in order to redevelop the site with multi -family structures. 2. The current land use pattern within the neighborhood is primarily single-family residences built between 1921 and 1966. At the block -level, the subject property is surrounded by single-family residences and duplexes zoned DR -1 District. If approved, DR -2 District could introduce more intense residential uses onto a single-family street, compromising the existing cohesive land use pattern. 3. The requested rezoning is for property less than an acre in size, located mid -block, with surrounding zoning of DR -1 District. The subject property is not adjacent to an existing DR -2 District. As such, approval of the proposed DR -2 District would create an isolated zoning district, breaking the continuity of the zoning pattern and introducing potentially inconsistent development. Maintaining the current zoning of DR -1 District would preserve consistent regulations at the street and block level. 4. Per Section 35.3.4.13 of the DDC, the following criteria for approval shall be considered for a rezoning City of Denton Page 2 of 4 Printed on 4/7/2017 powered by I._ag;gl;>karI File #: Z16 -0030a, Version: request: a. The proposed rezoning conforms to the Future Land Use element of the Denton Plan 2030 The zoning request meets the intent of the Neighborhood/University Compatibility Area designation. This designation identifies the need for density and neighborhood services in areas within close proximity to UNT, as this type of development fosters walkability, livability, and vibrancy in the public realm for both student populations and neighborhood residents. However, zoning must be sensitive to the surrounding established neighborhood. The adjacent land use pattern of single-family and duplex developments is consistent with the existing zoning of DR -1 District. If approved, DR -2 District could potentially introduce a new land use pattern and compromise the integrity of an established traditional neighborhood. Furthermore, while the Denton Plan 2030 recognizes the need for additional density to support the university areas, the existing zoning and land use pattern provides essential housing to meet the workforce needs of the entire community. b. The proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. There is adequate capacity in the existing infrastructure to support the proposal. STAFF RECOMMENDATION: Staff recommends denial of the request primarily because the change in zoning would create an isolated zoning district of DR -2 District which could impede the development of this area in a cohesive manner. 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, 26 notices were sent to property owners within 200 feet of the subject property, 72 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. As of this writing, one response in opposition has been received. PROJECT TIMELINE: Application Received: 1st Submittal Sent to DRC Members Comments Released to Applicant: Business Days under DRC Review: Business Day out to Applicant: Total Business Days: EXHIBITS: • Aerial Map December 12, 2016 January 6, 2017 January 23, 2017 11 0 11 City of Denton Page 3 of 4 Printed on 4/7/2017 powered by I._ag;gl;>karI File #: Z16 -0030a, Version: • Zoning Map • Future Land Use Map • Permitted Use Comparison • Proposed Zoning Map • Notification Map and Response Respectfully submitted: Shandrian Jarvis, AICP Development Review Committee Administrator Prepared by: Julie Wyatt Senior Planner City of Denton Page 4 of 4 Printed on 4/7/2017 powered by I._ag;gl;>karI Z16-0030 Site Location n N G-'1 0 30 60 f�Feet SITE W E7,, S i Parcels DENTON Roads Dearollopp r�eint ;aoi vices • GIS p p 9 9 9 Y 9/ p Date: 1/9/2p017 p Y theeCit�vVof Denton and neve been medeoe dailabrte tontheuppublichbasedron the Pa�blic InPormat�on gityt oTDeCitVn and makes eveerYd eff I tgolp rroduceeand public the Pn ostpcureentueridtaccu�ete inform anori posssble� No warrantiesthex�ressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance 6f this statement. Z16-0030 Existing Zoning Map goR, oa., uuuuuuu;, IIIII;I �� Illllllllll,i, �IIIIIIIIIIIIIII III 1111111 'lllllllll�������'�'����I,��,,��iiiiilllllllllllllllllllllli �i� D N 0 30 60 12 Feet �r � Parcels DR -1 CITY OF Roads DR -2 Devellopinneint Services GIS The C t of has re aps for de a rtm enta' se, These are not offic ia ma s ofatth�oenCit�yt ofDenton and should notbe used forolre alpen4itneerinng orsu ewng purpos s but rather for referencetpunrposes Thesemaarpsnarethe propeert�of the Denton and his e bee Val Ae the li based on the Pubic Nor The City of Denton makes everyfe a ou bl 0h e most curerent and curate in rm possible. No ies, express or p �e imp lie , are provided for the data herein, its u or its rpr tation. Utilization ofthis ma 0 em i n tue ec p indicates understanding and acceptance this stat Z16-0030 Future Land Use Map QSITE Future Land Use �J� Neighborhood / University Compatibility Area E � o zs zso SOoeet Parcels Low Residential Commercial S IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Roads ~Community Mixed Use Government/ «f DENTON Devellopinneint Services GIS p p 9 9 9 Y 9 p Date: 1/9/2201] p Y theeCit�vVof Denton and neve been medeoe dailabrte tontheupublichbasedron the Pa�tilic InPormat�on gityt oTDeCitVn of Denton) makes eveerYd eff I tgolp rroduceeand public the Pn ostpcureentueridtaccu�ete inform anori posssble� No warrantiesthex�ressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance 6f this statement. Permitted Uses Comparison Residential Uses .R .R Agriculture Livestock L(7) L(7) Single-family Dwellings Accessory Dwelling Units Attached Single-family Dwellings N Dwellings above Businesses N Live/Work Units Duplexes Community Homes for the Disabled Group Homes N N Multi -family Dwellings N L(5) Fraternity or Sorority House:'." Dormitory:'. Manufactured Housing Developments N N Commercial Land Uses � 111 M Home Occupation Sale of Products Grown on Site N N Hotels N N Motels N N Bed and Breakfast L(8) L(9) Retail Sales and Service N L(15) Movie Theaters N N Restaurant N N Private Club N N Bar N N Drive -Through Facility N N Professional Services and Offices N L(15) Quick Vehicle Servicing N N Vehicle Repair N N Auto and RV Sales N N Laundry Facilities IN Equestrian Facilities N N Outdoor Recreation N N Indoor Recreation N N Major Event Entertainment N N Commercial Parking Lots N N Administrative or Research Facilities IN j Broadcasting or Production Studio IN j Sexually Oriented Business N N Industrial Land Uses � 111 M Printing/Publishing N N Craft Alcohol Production Bakeries N N Manufacture of Non -Odiferous Foods N N Feed Lots N N Food Processing N N Light Manufacturing N N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center/Warehouse, General N N Warehouse, Retail N N Self -Service Storage N N Construction Materials Sales N N Junk Yards and Auto Wrecking N N Wrecker Services and Impound Lots N N Kennels N N Veterinary Clinics IN j Sanitary Landfills, Commercial Incineratiors, Transfer Stations N N Institutional Land Uses Basic Utilities J�" Community Service N N Parks and Open Space Churches Semi -Public Halls, Clubs, and Lodges Business/Trade School N N Adult or Child Day Care Kindergarten, Elementary School Middle School High School N N Colleges N N Conference/Convention Centers N N Hospital N N Elderly Housing N N Medical Centers IN �,J Cemeteries N N Mortuaries N N W E CS Rw. w.J W E CS Rw. w.J General Regulations DR DR Minimum Lot Area (square feet) 4,000 4,000 Maximum Density 8 30 Maximum Lot Coverage 60% 75% Minimum Landscaped Area 40% 25% Maximum Building Height 40 feet 45 feet LIMITATIONS: L(5) = Within this district the density of apartments will be calculated as one (1) bedroom equating to one-half (5) unit. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals L(8) — Travelers' accommodations, are permitted, provided that: 1. The business -owner or manager shall be required to reside on the property occupied 2. That each accommodation unit shall have one (1) off-street parking space, and the 3. That only one (1) ground or wall sign, constructed of a non -plastic material, non - interior illuminated of four (4) sq. ft. maximum size be allowed. Any exterior illumination of signage shall be installed such that it does not directly illuminate any residential structures adjacent or nearby the travelers' accommodation. 4. That the number of accommodation units allowed shall be proportional to the permitted density of the zone. Each traveler's accommodation unit shall be counted as 0.6 units for the purpose of calculating the permitted number of traveler's accommodations. 5. All traveler's accommodations shall be within two hundred (200) feet of a collector or arterial. Street designations shall be as determined by the City Comprehensive Plan. Distances shall be measured via public street or alley access to the site from the arterial. 6. Excluding the business -owner's unit and the area of the structure it will occupy, there must be at least four hundred (400) sq. ft. of gross interior floor space remaining per unit. 7. Traveler's accommodations are limited to no more than eight (8) guest units. L(9) = All restrictions of L(8), but limited to no more than fifteen (15) guest units. L(15) = Uses are limited to no more than five thousand (5,000) square feet of gross floor area per lot. An SUP is required for additional square footage for Semi -Public Halls, Clubs and Lodges. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9 L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9 Z16-0030 Proposed Zoning Map goR, oa., l! uuuuuuu;, IIIII;I �� Illllllllll,i, �IIIIIIIIIIIIIII III 1111111 'lllllllll�������'�'����I,��,,��iiiiilllllllllllllllllllllli �i� D N 0 30 60 120 Feet �r � Parcels DR -1 DENTON DR -2 The C t of has re aps for de a rtm enta' se, These are not offic ia,ma s ofatthjoenCitcyt of Denton and should not be used for Ire alpen4itneeri . ny or s ging p.rpos s but rather for referencetpunrposes Thesemaarpsnare the propeert� of the Denton and his e bee Val ble the li based on the Pubic Nor The City of Denton makes everyfeffo a publ0h e most curerent and curate in r a possible. No ies express or a p imp lie , are provided for the data herein, its u or its rprec p indicates understanding and acceptance 0 is statem Z16-0030 Notification Map F,9NNIN v N 1 0 100 200 400eet SITE �;E S o' OF ParcelsDENTON /'y� Roads ". Develloppneint;ani vices • R.IS Rare p 9 9 9 Y 9 p Date: 1/9/2201] p Y theeCit�vVof Denton and neve been medeoe dailabrte tontheupublichbasedron the Pa�blic InPormat�on gityt oTDeCitVn of Denton) makes eveerYd eff I tgolp rroduceeand public the Pn ostpcureentueridtaccu�ete inform anori posssble� No warrantiesthex�ressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance 6f this statement. w a Ai City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com IEN' `IN File #: Z17 -0007a, Version: Legislation Text AGENDA CAPTION Hold a public hearing and consider adoption of an ordinance to rezone approximately 0.862 acres from a Neighborhood Residential Mixed Use (NRMU) District to a CM -G District. The subject property is generally located on the north side of Hobson Lane, approximately 340 feet east of Country Club Road. The Planning and Zoning Commission voted 6-0 to approve the request. (Z17-0007, CST Corner Store). City of Denton Page 1 of 1 Printed on 6/2/2017 powered by I-eg;gl;>karI City of Denton - city Hale 41"Itlamm215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services CM: Todd Hileman DATE: June 6, 2017 SUBJECT Hold a public hearing and consider adoption of an ordinance to rezone approximately 0.862 acres from a Neighborhood Residential Mixed Use (NRMU) District to a CM -G District. The subject property is generally located on the north side of Hobson Lane, approximately 340 feet east of Country Club Road. The Planning and Zoning Commission voted 6-0 to approve the request. (Z17-0007, CST Corner Store). BACKGROUND The subject property consists of a portion of an unplatted tract of land located along W. Hobson Lane. The 0.862 acre property is zoned NRMU District. Recently, the applicant rezoned 4.379 acres located directly west of the subject property from NR -6 District and NRMU District to CM -G District (project Z16-0029). This rezoning left three zoning designations on a single tract of land and rendered the subject property an isolated zoning district, with a small area of NRMU District left between CM -G District to the west and NR -6 District to the east. In order to allow for more cohesive future development of the larger tract, the applicant submitted this request to rezone the remaining area zoned NRMU District to CM -G District. The requested CM -G District is consistent with the Future Land Use designation of Community Mixed Use, which is intended to promote a mix of uses, of which various commercial uses remain predominant, but where residential, service, and other uses are complimentary. Permitted uses and general regulations for lots in the CM- G District are consistent with the type of development intended by the Community Mixed Use designation. Although the NRMU and CM -G Districts have similar development regulations, the CM -G District permits a wider variety of commercial uses by right than the NRMU District. A comparison of General Regulations for each district is provided in Exhibit 6. The proposed CM -G District is compatible with the adjoining CM- G District to the west and northwest and would eliminate an isolated pocket of NRMU District zoning, allowing for a cohesive development of the larger parent tract. OPTIONS Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 26, 2017, the Planning and Zoning Commission recommended approval of the rezoning request (6-0). One individual spoke in favor of the request at the meeting, and the Commissioners had only brief discussion about the case. One Commissioner noted that she was opposed to the previous request to rezone the adjoining property from NRMU and NR -6 Districts to CM -G District, but since that request was approved she felt it appropriate to approve this request to make the zoning on the tract more consistent. 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. Agenda Information Sheet 2. Staff Analysis 3. Site Location Map 4. Existing Zoning Map 5. Future Land Use Map 6. Proposed Zoning Map 7. Permitted Uses Table 8. Presentation Slides 9. Public Notification Map and Responses 10. Planning and Zoning Commission Meeting Minutes 11. Draft Ordinance Respectfully submitted: Munal Mauladad Director of Development Services Prepared by: Hayley Zagurski Associate Planner 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 MINUTES PLANNING AND ZONING MINUTES April 26, 2017 After determining a quorum was present, the Planning and Zoning Commission of the City of Denton, Texas convened in a Work Session on Wednesday, April 26, 2017 at 5:30 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: Chair Jim Strange, Vice -Chair Devin Taylor, Commissioners: Larry Beck, Andrew Rozell, Gerard Hudspeth and Margie Ellis. ABSENT: Commissioner Steve Sullivan. STAFF: Shandrian Jarvis, Hayley Zagurski, Bob Makowski, Jennifer DeCurtis, Ron Menguita, Earl Escobar, and Cathy Welborn. WORK SESSION 1. Clarification of agenda items listed on the agenda for this meeting. This is an opportunity for Commissioners to ask questions of staff on the Consent and Regular Agenda Items, which may include a full briefing on an item in the order it appears on the regular session agenda. Any briefing will be repeated in regular session. Chair Strange opened the Work Session at 5:35 p.m. Shandrian Jarvis, Development Review Committee Administrator, introduced Bob Makowski, Planning Supervisor. Jarvis stated she would like to convene the Planning and Zoning Subcommittee for the Denton Development Code (DDC) rewrite the first week of June to meet with Clarion to receive an update. Jarvis asked the Commission if they had any questions regarding the March 22, 2017 or April 12, 2017 Planning and Zoning meeting minutes. Commissioner Ellis stated page 5 line 35 of the March 22, 2017 meeting minutes are incorrect, where Commissioner Hudspeth stated he does not agree with the rezone, and it does not belong in this area, she stated it doesn't make since he is the one that motioned for approval. Chair Strange questioned if the March 22, 2017 meeting minutes should be postponed to a later date. Jennifer DeCurtis, Deputy City Attorney, stated the Commission and staff could wait to see if Commissioner Hudspeth shows up for the Regular Meeting. Jarvis asked the Commission if there were any questions regarding the two plats on the Consent Agenda. Commissioner Beck questioned if a traffic analysis has been done on Kings Row. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Earl Escobar, Engineering Development Review Manager, stated they are extending Poinsettia Blvd to be a collector/service road for Loop 288 and there are plans to expand Kings Row along the frontage. Commissioner Ellis questioned if the flood study in note 7 for Consent Agenda item B had been done. Escobar stated a drainage flood study was performed before staff could consider approval and note 7 just needs to be removed. Hayley Zagurski, Associate Planner, presented Public Hearing item A. Zagurski stated the request is for a Specific Use Permit (SUP) to allow for a high school use on approximately 13 acres. Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030, subject to the following conditions: 1. The proposed use must be restricted to existing buildings on Lots 1R, 2R, 3R, and 4R, Block A, of the Denton Bible Church Addition, as is reflected on the attached Site Plan. Existing landscaping coverage and parking counts must be maintained as is reflected on the attached Site Plan. Any changes to the building footprints, parking counts, parking lot layouts, or landscaping area must be approved by amending the SUP. 2. Ordinance 99-277 must be repealed and replaced by a new ordinance so that only one ordinance controls the high school use on the subject property. Commissioner Rozell questioned if this SUP covers everything on the ordinance. Zagurski stated the current ordinance limits the applicant to 500 students. Commissioner Rozell questioned if all the City's requirements were updated. Zagurski stated staff did make sure it met the landscape and lot coverage requirements, and the buildings are within the height restrictions. Commissioner Ellis questioned if the Commission has a copy of the new ordinance. Zagurski stated no the new ordinance is created for City Council based on the Planning and Zoning Commission recommendations. Vice- Chair Devin Taylor questioned if condition one allows the applicant to develop on the undeveloped area without coming back to amend the SUP. Jarvis stated if the future use is permitted in the zoning district then it does not require an SUP as long as it complies with the development regulations, but if the new use is an extension to the high school then it would come back through the SUP process. Vice -Chair Taylor questioned if that is the case even if the Commission binds them to a site plan for no development on the south end of the property. Jarvis questioned Zagurski if the limits of construction for the SUP include the undeveloped parcel. Zagurski stated yes the applicant shows it on the site plan. Jarvis stated staff needs to amend the limits of construction for the SUP. Hayley Zagurski, Associate Planner, presented Public Hearing item B. This request is to rezone approximately 0.892 acres from Neighborhood Residential Mixed Use (NRMU) to Community Mixed Use General (CM -G) for a corner store on the North side of Hobson Lane. Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030. W 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 Commissioner Beck questioned if this is the same owner that will be building the convenience store. Zagurski stated yes it is the same developer. Commissioner Beck questioned if the applicant has indicated any future development for this lot. Zagurski stated this rezone was specifically triggered by staffs concern that we had created an isolated pocket of NRMU as a result of the previous rezoning for the corner of the lot. At this time we are unsure if the applicant's proposal will extend to this area. Jarvis stated the applicant has requested an indefinite postponement of Public Hearing item 4C. DeCurtis stated the Commission will have to close the Public Hearing, then entertain a motion for postponement indefinitely. Chair Strange closed the Work Session at 6:02 p.m. REGULAR MEETING The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, April 26, 2017 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time the following items were considered: NOTE: The Planning and Zoning Commission reserves the right to adjourn into a Closed Meeting on any item on its Work Session or Regular Session agenda consistent with Chapter 551 of the Texas Government Code, as amended, including without limitation, Sections 551.071-551.086 of the Texas Open Meetings Act. Commissioner Gerard Hudspeth arrived. Chair Strange called the Regular meeting to order at 6:34 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION MINUTES FOR: A. PZ17-082 Consider aproval of the Planning and Zoning Commission meeting minutes. Commissioner Andrew Rozell motioned. Commissioner Margie Ellis seconded to approve the March 22, 2017 Planning and Zoning Commission meeting minutes with the change regarding Commissioner Hudspeth's remarks. Motion approved (5-0). Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye" and Commissioner Gerard Hudspeth "aye". Vice -Chair Devin Taylor "abstained". Chair Strange requested a clarification regarding the exact change to Commissioner Hudspeth's comments during the March 22, 2017 Planning and Zoning Commission meeting. Commissioner Rozell requested clarification from staff regarding the exact page and line number. Shandrian Jarvis, Development Review Committee Administrator, stated it is page 5 line 35. 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 36 37 38 39 40 41 42 43 44 45 46 Commissioner Andrew Rozell motioned. Commissioner Larry Beck seconded to approve the March 22, 2017 Planning and Zoning Commission meeting minutes with the change of page 5 line 35 to state Commissioner Hudspeth stated he does agree with the rezone striking it doesn't belong in this area. Motion approved (5-0). Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". Vice -Chair Devin Taylor "abstained". Vice Chair Devin Taylor motioned. Chair Jim Strange seconded to approve the April 12, 2017 Planning and Zoning Commission meeting minutes. Motion approved (6-0). Vice -Chair Devin Taylor "aye", Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". 3. CONSENT AGENDA A. PP17-0009 Consider a request by ASG Harvest Hill, Ltd. for approval of a preliminaly plat of Harvest Hill. The approximately 50.34 acre site is located north of Kings Row and south of Loop 288. PP17-0009, Harvest Hill, Julie Wyatt) B. Consider a request by ASG Harvest Hill, Ltd. for gpproval of a final plat of Harvest Hill. The 50.34 acre site is generally located north of Kings Row and south of Loop 288. (FP16-0032, Harvest Hill, Julie Wyatt). Commissioner Larry Beck motioned. Commissioner Andrew Rozell seconded to approve the Consent Agenda. Motion approved (6-0). Vice -Chair Devin Taylor "aye", Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". 4. PUBLIC HEARINGS A. Hold a public hearing and consider a request by Denton Bible Church for a Specific Use Permit to allow for a high school use on approximately 13.73 acres. The properly is generally located at the southwest corner of the East University Drive and Nottingham Drive intersection. (S 17-0002, Denton Calvary Academy High School, Haley Zagurski). Chair Strange opened the Public Hearing. Hayley Zagurski, Associate Planner, presented Public Hearing item 4A. Zagurski stated the request is for a Specific Use Permit (SUP) to allow for a high school use on approximately 13.73 acres. Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030, subject to the following conditions: 1. The proposed use must be restricted to existing buildings on Lots 1R, 2R, 3R, and 4R, Block A, of the Denton Bible Church Addition, as is reflected on the attached Site Plan. Existing landscaping coverage and parking counts must be maintained as is reflected on the attached Site Plan. Any changes to the building footprints, parking counts, parking lot layouts, or landscaping area must be approved by amending the SUP. 2. Ordinance 99-277 must be repealed and replaced by a new ordinance so that only one ordinance controls the high school use on the subject property. il 2 Commissioner Beck questioned if the academy decided to build a facility on the empty lot would 3 that generate another SUP to amend the current SUP. Zagurski stated yes with the existing 4 recommendation language, but staff agrees to an amendment to the language to allow the academy 5 to develop permitted uses on lot four. 6 7 Commissioner Rozell questioned if there would be any protection to the surrounding neighborhood 8 if the last condition in Ordinance 99-277 section one which states: That any change in lighting 9 on the property shall be designed and maintained so as not to shine on or otherwise disturb, 10 surrounding residential property or to shine and project upward into the night sky is 11 removed. Zagurski stated there is a section in Subchapter 13 which states all outer lighting must 12 be pointed downwards. 13 14 Chair Strange requested number of allowed students and parking. Zagurski stated the existing 15 parking count is 694, and the maximum number of students indicated by the applicant is 1500, but 16 the student count is not stated on the site plan. Chair Strange then questioned if they would be 17 limited to that number if it wasn't stated in the SUP. Zagurski responded that there would be no 18 limitations on number of students other than by occupancy restrictions of the existing buildings. 19 20 The following individual requested to speak during the Public Hearing: 21 Stacey Baxter, 2101 Colorado Blvd Apt 51303, Denton TX 76206. Supports this 22 request. 23 24 Chair Strange read the following Public Hearing cards into the record for those that did not want 25 to speak: 26 Everette Newland, 8485 Jim Christal Rd, Denton TX, 76207. Supports this request. 27 Darren Thompson, 710 Magnolia Street, Denton TX, 76201. Supports this request. 28 Ryan Soulier, 3220 Nottingham DR, Denton TX, 76209. Supports this request. 29 Zach Rozell, 2213 Winthrop Hill Rd, Argyle TX, 76226. Supports this request. 30 Pat Smith, 2300 E University Dr, Denton TX, 76209. Supports this request. 31 Jenny Newland, 8485 Jim Christal Rd, Denton TX, 76207. Supports this request. 32 Max Roberson, 1100 Hillcrest Street, Denton TX, 76201. Supports this request. 33 Perla McBeain, 2657 S Bonnie Brae Street, Denton TX, 76207. Supports this request. 34 Courtney Roberson, 1100 Hillcrest Street, Denton TX, 76201. Supports this request. 35 36 Chair Strange closed the Public Hearing. 37 38 Vice -Chair Devin Taylor motioned. Commissioner Andrew Rozell seconded to approve Public 39 Hearing 4A based on staffs conditions and the following recommendations: 1. The proposed use 40 must be restricted to existing buildings on Lots 1R, 2R, 3R, and 4R, Block A, of the Denton Bible 41 Church Addition, as is reflected on the Site Plan included as exhibit. Existing landscaping coverage 42 and parking counts must be maintained as is reflected on the Site Plan. Any changes to the building 43 footprints, parking counts, parking lot layouts, or landscaping area on Lots 1R, 2R, or 3R must be 44 approved by amending the SUP. Lot 4R can develop with uses permitted in the NRMU District 45 under the standards of the Denton Development Code without amending the SUP. 2. Ordinance 46 99-277 must be repealed and replaced by a new ordinance so that only one ordinance controls the I high school use on the subject property. Motion approved (6-0). Vice -Chair Devin Taylor "aye", 2 Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", 3 Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". 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 B. Hold a public hearing and consider a request by Vandesmith Developers, Ltd. to rezone qpproximately 0.862 acres from a Neighborhood Residential Mixed Use (NRMU) District to a CM -G District. The subject property iseg nerally located on the north side of Hobson Lane, qpproximately 340 feet east of Country Club Road in the City of Denton, Denton County, Texas. (Z17-0007, CST Corner Store, Hayley Zagurski). Chair Strange opened the Public Hearing Hayley Zagurski, Associate Planner, presented Public Hearing item 4B. Zagurski stated the request is to rezone 0.862 acres from Neighborhood Residential Mixed Use (NRMU) to Community Mixed General (CM -G). Commissioner Rozell questioned if staff requested the applicant to combine the two properties. Zagurski stated yes it was a staff initiated request. The following individual requested to speak: Nathan Tune, 3717 Merrimack Dr., Denton TX, 76210. Supports this request. Chair closed the Public hearing. Commissioner Ellis stated for the record she was against this rezoning to CM -G the last time, but since it did pass it doesn't make any sense for her to vote against this particular tract of land. Commissioner Andrew Rozell motioned. Commissioner Gerard Hudspeth seconded to approve Public Hearing item 4B. Motion approved (6-0). Vice -Chair Devin Taylor "aye", Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". C. Hold a public hearing and consider a request by Di Realty, Inc. to rezone Uproximatel�29 acres from a Regional Center Residential 1 (RCR-1) District and a Regional Center Commercial Downtown (RCC -D) District to a Commercial Mixed Use General (CM -G) District. The Property is generally located on the northwest and southwest corners of Lakeview Boulevard and Shady Shores Road. This item was continued at the April 12, 2017 Planning and Zoning Commission meeting. (Z17-0002, Kroger Denton, Julie Wyatt). Public Hearing item 4C was left open from the April 12, 2017 Planning and Zoning Commission meeting. Chair Strange called for any citizens to speak on Public Hearing item 4C. Chair Strange closed the Public Hearing. no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Vice -Chair Devin Taylor motioned. Commissioner Margie Ellis seconded to postpone infinitely. Motion approved (6-0). Vice -Chair Devin Taylor "aye", Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye" and Commissioner Gerard Hudspeth "aye". 5. PLANNING & ZONING COMMISSION PROJECT MATRIX A. PZ17-083 Planning and Zoning Commission project matrix. Shandrian Jarvis, Development Review Committee Administrator, asked the Commissioner's if they had items to add to the matrix. The Commissioners had no items. Chair Strange requested an update regarding the financial analysis he requested. Jennifer DeCurtis, Deputy City Attorney, stated staff is going to get with Chair Strange individually to discuss his request before it is brought before the Commission. Chair Strange closed the Regular Meeting at 7:06 p.m. 7 S11-ega1\Our Documents\Ordinances\17\Z17-0007 Ord inance.doex ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING A CHANGE IN THE ZONING CLASSIFICATION FROM A NEIGI"IBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT AND USE CLASSIFICATION TO A COMMUNITY MIXED USE GENERAL (CM -G) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 0.862 ACRES OF LAND GENERALLY LOCATED ON THE NORTH SIDE OF HOBSON LANE, APPROXIMATELY 340 FEET EAST OF COUNTRY CLUB ROAD IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z17-0007) WHEREAS, Allen Perez of John Thomas Engineering has applied for a zoning change on approximately 0.862 acres of land legally described and depicted in Exhibit A, attached hereto and incorporated herein by reference (hereinafter, " the Property") from a NRMU zoning district and use classification to a CM -G zoning district and use classification; and WHEREAS, on April 26, 2017, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval [6-0] of the change in zoning district and use classification; and WHEREAS, on June 6, 2017, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the Property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The zoning district and use classification for the Property is hereby changed from NRMU District to CM -G District. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, INTERIM CITY ATTORNEY Exhibit A Property A Legal Description and Site Location Map METES AND BOUNDS DESCRIPTION ZONING TRACT — 0.8620 ACRE IN THE W. DANIEL SURVEY, A-378 CITY OF DEN'TON, DENTON COUNTY, TEXAS All that certain 0.8620 of an acre of land, out of the 27.32 acre tract described in the deed to Vandesmith Developers, Ltd., recorded in Document Numbers 02-82528 and 02-82529, in the Public Records of Denton County, Texas (P.R.D.C.T.), in the W. Daniel Survey, A-378, City of Denton, Denton County, Texas and more particularly described by metes and bounds as follows: (All bearings based on the "Notice of Lis Pendens" State of Texas - Parcel 19, recorded in Document Number 2013-145593 P.R.D.C.T.) Commencing at a 1/2" iron, found for the northwest corner of Lot 6, Block A, The Villas of Forest Glen, recorded in Cabinet V, Slide 441 P.R.D.C.T., in the north line of said 27.32 acre tract, common to the south line of Third Tract described in the deed to Ronnie Lee Hilliard and David Fulton, recorded in Document Number 95-0030415 P.R.TD.C.T., from which a 1/2" iron rod with a cap found for the southwest corner of said Lot 6 bears South 00° 13' 24" East — 415.10', then North 89° 20' 48" West — 790.16' along the common line of said Third Tract to the POINT OF BEGINNING and the northeast corner of the herein described tract; THENCE South 00° 29' 20" East — 485.84' to southeast corner of the herein described tract, in the south line of said 27.32 acre tract, called to be the center of Hobson Lane (Variable Width Right -of -Way); THENCE South 89° 30' 40" West — 99.01' along the south line of said 27.32 acre tract to the southwest corner of the herein described tract; THENCE North 000 29' 20" West— 323.75' to a point for corner of the herein described tract; THENCE North 44° 30' 40" East — 127.62' to a point for corner of the herein described tract; THENCE North 00° 29' 20" West — 72.02' to northwest corner of the herein described tract, in the common line of said Third Tract and said 27.32 acre tract; THENCE South 891 20'48" East — 8.77' along said common line to the POINT OF BEGINNING and containing 0.8620 of an acre of land. THIS METES AND BOUNDS DESCRIPTION IS ISSUED FOR THE ATTACHMENT TO A ZONING CHANGE SUBMITTAL PACKET. THIS DESCRIPTION IS NOT INTENDED FOR TITLE TRANSFER. SPRY SURVEYORS Project Number: 095-007-50 • Issue Date: March 03, 2017 :.. ..............1.. DAVID CARLTON LEK7g Certificate Date: December 7, 2016 • Finn Reg No. 10112000 •••;••••••••••^.•..•••..y... 0 5647 v.• 8241 Mid -Cities Blvd., Suite 100 - North Richland Hills, TX 76.182 <';0, �V.• ••:°Ees10 OQ Phone 817-776.4049 • email:spry@sprysurveyors.com �V $Uiahl David Lewis R.P.L.S. NO. 5647 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com I1EN' `IN Legislation Text File #: Z17-0007, Version: Planning Report Z17-0007 / CST/Corner Store City Council District 4 Planning & Zoning Commission April 26, 2017 REQUEST: Hold a public hearing and consider a request by Vandesmith Developers, Ltd. to rezone approximately 0.862 acres from a Neighborhood Residential Mixed Use (NRMU) District to a CM -G District. The subject property is generally located on the north side of Hobson Lane, approximately 340 feet east of Country Club Road in the City of Denton, Denton County, Texas. (Z17-0007, CST Corner Store, Hayley Zagurski). OWNER: Vandesmith Developers Ltd. APPLICANT: Allen Perez, John Thomas Engineering BACKGROUND: The subject property consists of a portion of an unplatted tract of land located along W. Hobson Lane. The property is zoned NRMU District. On March 21, 2017, the City Council approved the rezoning of 4.379 acres located directly west of the subject property from NR -6 District and NRMU District to CM -G District (case number Z16-0029). This rezoning resulted in three zoning designations on a single tract of land and rendered the subject property an isolated zoning district. As is shown on the Current Zoning Map, less than one acre of NRMU District was left between CM -G District to the west and NR -6 District to the east. To facilitate more cohesive future development of the larger tract, the applicant submitted this request to rezone the remaining area zoned NRMU District to CM -G District. The applicant indicated that he intends to develop a convenience store and fuel station at the corner of Hobson Lane, Country Club Road, and Fort Worth Drive. SITE DATA: The subject property totals 0.862 acres and is a part of a larger unplatted tract of land. The subject property is undeveloped and has approximately 100 feet of frontage along Hobson Lane. Hobson Lane is classified in the City of Denton Mobility Plan as a Secondary Arterial roadway. Secondary Arterial roadways require 110 feet of right-of-way and are designed to handle approximately 25,000 vehicle trips per day at full width. Currently, Hobson Lane is constructed as a two-lane undivided roadway with a capacity of up to 10,050 vehicle trips per day. There are currently about 6,260 vehicle trips per day along Hobson Lane in this segment. In addition to improvements planned by the Texas Department of Transportation along Country Club Road and Fort Worth Drive in the vicinity of the subject property, a turn lane is planned to be added to west -bound Hobson Lane at Country Club Road. Construction of this street improvement is expected to commence in the summer of 2017. City of Denton Page 1 of 5 Printed on 4/21/2017 powered by I._eggl;>karI File #: Z17-0007, Version: 1 USE OF PROPERTY UNDER CURRENT ZONING: The purpose of the NRMU District is to encourage a mixed-use activity center with light retail, office, and institutional uses that support surrounding neighborhoods. In some instances it can also be used to transition from non-residential zoning districts to single-family neighborhoods. The maximum density is 30 units per acre, except for townhomes which are limited to 12 units per acre. Apartments are only permitted as part of mixed-use developments or with approval of a Specific Use Permit (SUP). The NRMU District permits many commercial and institutional uses with limitations or an SUP. The schedule of permitted uses in the NRMU District is attached for reference. SURROUNDING ZONING AND LAND USES: North: Property immediately to the north is developed with a single-family residence to the northwest in the CM -G District. The remainder of this property is undeveloped and is zoned NR -6 District. East: The remainder of the unplatted tract, of which the subject property is a part, is located to the east. The property is undeveloped and is zoned NR -6 District. South: Across Hobson Lane to the south are single-family homes located in a Neighborhood Residential 2 (NR - 2) District and office buildings located in an NRMU District. West: To the west is a portion of the unplatted parent tract which is currently undeveloped. It was recently rezoned to CM -G District. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The requested CM -G District is intended to provide the necessary shopping, services, recreation, employment and institutional facilities that are required and supported by the surrounding community. The schedule of permitted uses is attached for reference. The requested CM -G District is directly compatible with the adjoining CM -G District to the west and northwest. The surrounding properties have a wide mixture of uses that range from commercial and industrial to single- and multi -family. Uses permitted in the CM -G District would provide services to support residents and employees in the surrounding area. The proposed rezoning would also eliminate an isolated pocket of NRMU District zoning and would allow for more consistent development of the larger parent tract under two zoning designations rather than the existing three designations. In terms of the scale of development, NRMU District and CM -G District are very similar. However, CM -G District permits additional forms of commercial development by right and requires that multi -family development contain ground floor commercial or office uses, which is more appropriate for the subject property, given its proximity to a major intersection along a state highway. This comparison is discussed further in Considerations. COMPREHENSIVE PLAN: "Community Mixed Use" is intended to promote a mix of uses, of which various commercial uses remain predominant, but where residential, service, and other uses are complimentary. This land use applies to existing and future commercial areas in the city, where redevelopment to mixed-use is desirable. The intent is to encourage a more diverse and attractive mix of uses over time. Future development in Community Mixed Use areas will complement and embrace existing, viable uses, and raise the standard of design to increase their economic viability, accommodate greater connectivity and mobility options, and create a sense of place to serve City of Denton Page 2 of 5 Printed on 4/21/2017 powered by I._ag;gl;>karI File #: Z17-0007, Version: 1 the local community. Development criteria of the Community Mixed Use future land use designation include: a) Typical development such as supermarkets, drug stores, specialty shops, service stations, midsize offices, employers, and high -to -moderate density housing. b) Places of worship, schools, and parks and open space. c) Diverse uses in close proximity to one another so that all uses are accessible from a single stop by walking or bicycling. d) Vertical and horizontal mixed-use. e) Accessibility from transit routes. f) Appropriately programmed commercial uses to serve the local Denton community and to be compatible with adjacent land uses. g) New development that is sensitive to the surrounding built and natural context in scale and form as described above. In summary, the proposed rezoning is consistent with the Future Land Use designation of Community Mixed Use. CONSIDERATIONS: I. CM -G District would be a logical extension of the existing CM -G District to the west and northwest. The subject property is located near an intersection of three major arterial roadways. As was mentioned in Site Data, there are currently improvements planned for these roadways that are expected to significantly improve the flow of traffic through this intersection and would facilitate access to this property once it develops. The uses permitted in the CM -G District would provide needed services to surrounding residents and employees. 2. The scale and intensity of development permitted in the NRMU District and the CM -G District are not substantially different. For example, both districts permit up to 80% lot coverage and a maximum building height of 65 feet. A tabular comparison of some of the General Regulations for each district is provided in the Permitted Use Table. 3. If rezoned, development of the subject property would be subject to all compatibility requirements, such as buffering and screening, in Section 35.13 which would help minimize nuisances between the potential commercial use and adjoining residential districts. 4. The proposed rezoning would encourage a more cohesive development pattern in the vicinity of the subject property. A recent rezoning left the subject property as an isolated pocket of NRMU District within a larger unplatted tract of land with NR -6 District on the eastern side and CM -G District on the western side. Rezoning the remaining area with the NRMU District designation to CM -G District would result in only two zoning designations on the larger tract and thus facilitate more cohesive development of the property. City of Denton Page 3 of 5 Printed on 4/21/2017 powered by I._ag;gl;>karI File #: Z17-0007, Version: 1 5. Per Section 35.3.4.B of the Denton Development Code, the following criteria shall be considered for a rezoning request: The proposed rezoning conforms to the Future Land Use element of the Denton Plan 2030. The Future Land Use designation for the surrounding area is Community Mixed Use. The requested rezoning to CM -G District conforms to this designation. Permitted uses and general regulations for lots in the CM -G District are consistent with the type of development intended by the Community Mixed Use designation. 6. Per Section 35.3.4.B of the Denton Development Code, the following criteria shall be considered for a rezoning request: The proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. Water, sewer, and public access are all available the property along Hobson Lane. STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, 6 notices were sent to property owners within 200 feet of the subject property, 19 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 responses, one in favor and one in opposition to the request, have been received as of the issuance of this report. A neighborhood meeting has not been scheduled as of the issuance of this report. PROJECT TIMELINE: Application Received: February 21, 2017 1st Submittal Sent to DRC Members: March 15, 2017 Comments Released to Applicant: March 30, 2017 Business Days under DRC Review: 11 Business Day out to Applicant: 0 Total Business Days: 11 EXHIBITS: • Aerial Map • Existing Zoning Map • Future Land Use Map • Proposed Zoning Map • Permitted Uses • Notification Map Respectfully submitted: City of Denton Page 4 of 5 Printed on 4/21/2017 powered by L.ag;gl;>karI IMrT.'WArAIIIIIYATM0Me i Shandrian Jarvis, AICP Development Review Committee Administrator Prepared by: Hayley Zagurski Associate Planner City of Denton Page 5 of 5 Printed on 4/21/2017 powered by I._ag;gl;>karI /1.1 1 11 A r ,. m-7 e e Existing mooning iviap r 9 1 1 1 1 e e FULUIU Ldr]u UbU ivies idential SITE Future Land Use Business Innovation - . N `°E 0 255 510 1,020 Feet Parcels Low Residential Industrial Commerce 5 Roads Moderate Residential Parks /Open Space°F■�j. L ON Community Mixed Use , �,/,,, Ilan�sinmaN'T"'i vuces GIS Date: 3/28/2017 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 legpal, enpineerinq or surveying purposes 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 implied, are provided for the data herein, its use, or its interpretation. Utilization of th is map indicates understanding and acceptance of th is statement. but rather for reference purposes. These maps are the property of and accurate information possible. No warranties, expressed or Proposed Zoning Map Permitted Uses Table NRMU CM -G Residential Uses Agriculture P P Livestock L(7) L(7) Single-family Dwellings N N Accessory Dwelling Units N N Attached Single-family Dwellings L(40) N Dwellings above Businesses P P Live/Work Units P P Duplexes N N Community Homes for the Disabled Group Homes U4' N Multi -family Dwellings SUP/L(4) L(6)&L(4) Fraternity or Sorority House U 4' N Dormitory U4' N Manufactured Housing Developments N N NRMU CM -G Commercial Land Uses Home Occupation F' N Sale of Products Grown on Site N N Hotels Motels N F' Bed and Breakfast Retail Sales and Service L(17) F' Movie Theaters N iIi P Restaurant L(11) F' Private Club L(11) F' Bar L(11) F' Drive -Through Facility "HIP F' Professional Services and Offices L(17) F' Quick Vehicle Servicing "HIP F' Vehicle Repair N F' Auto and RV Sales N F' Laundry Facilities Equestrian Facilities N F' Outdoor Recreation ''M P F' Indoor Recreation N F' Major Event Entertainment N SUP Commercial Parking Lots N F' Administrative or Research Facilities L(14) F' Broadcasting or Production Studio L(14) F' Sexually Oriented Business N N Gas Wells L(27) L(27) NRMU CM -G Industrial Land Uses Printing/Publishing N F' Bakeries L(21) P Manufacture of Non - Odiferous Foods N N Feed Lots N N Food Processing N N Light Manufacturing N N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center/Warehouse, General N N Warehouse, Retail N N Self -Service Storage N N Construction Materials Sales N N Junk Yards and Auto Wrecking N N Wrecker Services and Impound Lots N N Kennels N N Veterinary Clinics N F' Sanitary Landfills, Commercial Incineratiors, Transfer Stations N N Gas Wells L(27) L(27) NRMU CM -G Institutional Land Uses Basic Utilities L(25) U4' Community Service Parks and Open Space Churches Semi -Public Halls, Clubs, and Lodges Business/Trade School L(14) F' Adult or Child Day Care Kindergarten, Elementary School Middle School High School ''MP F' Colleges N P Conference/Convention Centers N F' Hospital N N Elderly Housing F' N Medical Centers Cemeteries N N Mortuaries N F' WECS SUP "HIP WECS SUP "HIP NRMU CM -G General Regulations Minimum Lot Area (square feet) 2,500 2,500 Maximum Density 30 Maximum Lot Coverage 80% 80% Minimum Landscaped Area 20% 20% Maximum Building Height 65 feet 65 feet L(4) — Multi -Family is permitted only: With a Specific Use Permit (SUP), As part of a Mixed -Use Development; or As part of a Master Plan Development, Existing; or If the development received zoning approval allowing multi -family use with one (1) year prior to the effective date of Ordinance No. 2005-224; or, If allowed by a City Council approved neighborhood (small area) plan. L(6) — Permitted only on 2nd story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(11) — Limited to sit down only, and no drive up service permitted. Limited to no more than one hundred (100) seats and no more than four thousand (4,000) square feet of restaurant area. L(14) — Uses are limited to no more than ten thousand (10,000) square feet of gross floor area. L(16) — Uses are limited to no more than 1,500 square feet of gross floor area per lot. L(17) — Uses that exceed twenty-five thousand (25,000) square feet of gross floor area per use require approval of a SUP. L(21) — Baking and Bottling areas not to exceed two thousand five -hundred (2,500) square feet. Sales on premise of products produced required in the same zone. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L (40) = Limited to a maximum 12 units per acre. •--� • • • \ • • f• w A • r ruaiic ivotincation iviap and Responses Response Form Z17-0007 CST Corner Store In order for your opinion to be counted, please complete and mail this, form to: Department of Development Services Attn: Hayley Zagurski, Project Manager 215 W Hickory Street Denton, TX 76201 You may also email or fax a copy to: Email: Hayley.Zagurski@cityofdenton.com Fax: (940)349-7707 --------------------------------------------- Project No: Z17-0007 Please circle o a In favor of request Opposed to request comme - nts• signature Printed Name Mailing Address City, State Zip Phone Number Email Address -171 - �'�A "-I.."'..--Physical Address of Property within 200 feet `Zesponse Form Z117-0007' CST Cromer Stare [n order for yoluir opinion to be counted, please compteteand mait this, form to: Department of Development Services Aftn: Hayfey Zagurski, Project Manage,r 215 W Hickory Sjtreet Dienton,TX 76201 Y U o may als,o email or fiax a copy to: E nat 1, �-W�ay ley. Tigru rski@c ityiMe uwc ciiiin Fax. (940)349-7707 'lease circle one - In favor of requea Rol "MIT "l M, Opposed to request Stinature ZA� 5 " - Pirfinted, Name, e',"'ZI-i$ / r"P Maiting Address //" '—r' � 60- ........................ !�� i,. . ........ ........................... . . . . . . ..................... City, State'Ziip Phoine Number 11 ?- 11Z 3,11'1 Email Address "7 17 J�L.;..c ....... . .. . ..... . ...... . ......... .. . ..... Phy'sIcat Address of Propertywfthi. .n 200 feet ',k ZZ,