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2017-12-12 Agenda with Backup
Tuesday, December 12, 2017 City of Denton Meeting Agenda City Council 1:00 PM City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com Work Session Room After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, December 12, 2017 at 1:00 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 December 12, 2017. 3. Work Session Reports A. ID 17-1171 Receive a report, hold a discussion, and give staff direction regarding the Energy Management Organization Review being conducted by Deloitte. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Report Exhibit 3 - Presentation Exhibit 4 - Management Response B. ID 17-1655 Receive a report, hold a discussion and provide direction on design options and schedule for the proposed reconstruction of Fire Station 3. Attachments: Exhibit 1 - Agenda Information Sheet.docx Exhibit 2 - Station 3.pdf Exhibit 3 - Station 3 Cost Estimate .pdf C. ID 17-1710 Receive a report, hold a discussion, and give staff direction regarding the potential funding for small scale traffic improvements and the Vela Athletic Complex project. Attachments: Exhibit 1 - Small Traffic Improvements & Vela Projects.docx Exhibit 2 - Small Traffic Improvements Vela Projects PP.docx.pdf D. ID 17-1706 Receive a report, hold a discussion, and give staff direction regarding City staff and organizational changes. 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. Page 1 Printed on 121812017 City Council Meeting Agenda December 12, 2017 1. Closed Meeting: A. ID 17-1658 Deliberations Regarding Personnel Matters - Under Texas Government Code Section 551.074. Discuss and deliberate regarding the evaluation of candidates and the appointment/employment of a City Auditor. B. ID 17-1695 Deliberations regarding Real Property - Under Texas Government Code, Section 551.072; and Consultation with Attorneys - Under Texas Government Code, Section 551. Receive information from staff, discuss, deliberate, and provide staff with direction pertaining to the status, strategy, and possible resolution of condemnation case styled City of Denton, Texas v. RTS&M, LLC, et al., Cause No. PR -2014-00492, currently pending in the Probate Court of Denton County, Texas; Consultation with the City's attorneys regarding legal issues associated with the condemnation of the real property interests where a public discussion of these legal matters could jeopardize the City's legal position in any administrative proceeding or potential litigation. [Mayhill Road Widening & Improvements project - Parcel M134] C. ID 17-1700 Deliberations regarding a Personnel Matter - Under Government Code, Section 551.074; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. Deliberate and discuss the appointment and duties of an interim Internal Auditor and contracting out certain functions of the Internal Auditor on an interim basis; consultation with the City's attorneys regarding associated legal issues where a public discussion associated with 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 D. ID 17-1711 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 1301 S. Mayhill Rd., Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with 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. Page 2 Printed on 121812017 City Council Meeting Agenda December 12, 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. Following the completion of the Closed Meeting, the City Council will convene in a Special Called Meeting at which the following items will be considered: 1. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — J). 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 — J 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 17-1373 Consider adoption of an ordinance awarding a contract for radio network design and installation services, the installation of new transmission lines, and the linking of radio communications between seven facilities in relation to the upgrade of the City of Denton Water Production Department's Radio Communication System as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR-SDD-2678; providing for the expenditure of funds therefor and providing an effective date (File 6518 -awarded to Johnston Technical Services, Inc. in the not -to -exceed amount of $196,496.99). The Public Utilities Board will consider this item on December 11, 2017. Attachments: Exhibit 1 -Agenda Information Sheet.pdf Exhibit 2 -Loop Drawing.pdf Exhibit 3-Ordinance.pdf Exhibit 4-Contract.pdf B. ID 17-1617 Consider adoption of an ordinance accepting competitive bids and awarding a contract for the supply of Parkland Maintenance Products including but not limited to landscape and turf fertilizer, insecticides, herbicides, mulch, and peat moss for the City of Denton Parks and Recreation Department; providing for the expenditure of funds therefor; and providing an effective date (IFB 6409 -awarded to the lowest responsive bidder for each Page 3 Printed on 121812017 City Council Meeting Agenda December 12, 2017 line item in the three (3) year not -to -exceed amount of $196,741). Attachments: Exhibit 1 -Agenda Information Sheet.pdf Exhibit 2 -Tabulation Sheet.pdf Exhibit 3 -Ordinance. Exhibit 4-SiteOne Contract.pdf Exhibit 5 -Irrigators Supply Contract.pdf Exhibit 6-BWI Contract.pdf Exhibit 7-Harrells LLC Contract. Exhibit 8 -Winfield Contract.pdf Exhibit 9 -Helena Chemicals Contract.pdf C. ID 17-1653 Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing an agreement between the City of Denton and Member Cities of the "Atmos Cities Steering Committee" (ACSC); finding and determining that the meeting at which this resolution was passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Resolution D. ID 17-1654 Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing the City of Denton's membership in the "Alliance of Oncor Cities" (AOC); finding and determining that the meeting at which this resolution as passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. Attachments: Exhibit 1 - Agenda Information Sheet Exhibit 2 - Resolution E. ID 17-1683 Consider adoption of an ordinance accepting competitive proposals and awarding a best value public works contract for the construction of IOOF and Oakwood Cemetery fences for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6579 -awarded to Rockstar Welding LLC in the not -to -exceed amount of $442,873.20). Attachments: Exhibit 1 -Agenda information Sheet.pdf Exhibit 2 -Evaluation and Pricing Sheet.pdf Exhibit 3-Ordinance.pdf Exhibit 4-Contract.pdf F. ID 17-1684 Consider adoption of an ordinance accepting competitive bids and awarding a contract for the supply of Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor 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 (IFB 6552 -awarded to Wesco Distribution in the three (3) year not -to -exceed amount of $140,000). Page 4 Printed on 121812017 City Council Meeting Agenda December 12, 2017 Attachments: Exhibit 1 -Agenda Information Sheet Ic.pdf Exhibit 2 -Tabulation Sheet.pdf Exhibit 3-Ordinance.pdf Exhibit 4-Contract.pdf G. ID 17-1636 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the University of North Texas (UNT) for the purpose of providing for cost and duty allocation of a traffic study to assess the impact of street closures within the UNT campus for a total cost of $224,700 and authorizing the expenditure of funds up to $112,350. Attachments: Exhibit 1 -Agenda Information Sheet.docx Exhibit 2 - Agreement.pdf Exhibit 3 - Ordinance. H. ID 17-1685 Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for traffic engineering and planning services relating to a traffic study to be performed in an area within and adjacent to the University of North Texas specifically the area bounded by Scripture Street on the north, Bonnie Brae on the west, IH -35E on the south, and Carroll Boulevard/Fort Worth Drive on the east; providing for the expenditure of funds therefor; and providing an effective date (File 6633 awarded to Walter P. Moore and Associates, Inc. in the not -to -exceed amount of $224,700). Attachments: Exhibit 1 -Agenda Information Sheet.pdf Exhibit 2 -Location Map.pdf Exhibit 3-Ordinance.pdf Exhibit 4-Contract.pdf L ID 17-1694 Consider adoption of an ordinance of the City of Denton, Texas to enact a Citizen Comment Pilot Program for Section 3.13. ("Receive Scheduled Citizen Reports from Members of the Public") items of the City Council's Regular Meeting Agenda; providing for a severability clause; providing for an effective date; and providing for a sunset date. Attachments: AIS re Citizen Comment Pilot Program 12-12-17.pdf CC Rules of Procedure Ordinance 121217.pdf RULES OF PROCEDURE -version 2.pdf CC Regular Agenda Meeting modifcation of Section 3.B..pdf J. ID 17-1699 Consider approval of a Resolution directing and authorizing the City Attorney of the City of Denton to intervene in Staff's Application to Set 2018 Wholesale Transmission Service Charges for the Electric Reliability Council of Texas pending before the Public Utility Commission of Texas under Docket No. 47777 and to use, if needed, the Austin law firm of Lloyd Gosselink Rochelle & Townsend, P.C. to represent the City in the same; and providing an effective date. Page 5 Printed on 121812017 City Council Meeting Agenda December 12, 2017 Attachments: AIS PUC Docket No. 47777- Staff Application PUC Docket No. 47777 - Order No. 1 Proposed Resolution 2. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 17-1619 Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for engineering design services relating to the design, bid phase, and construction services for the PEC -4 Phases 3 and 4 Drainage Improvements project which includes approximately 2,700 linear feet of reinforced concrete box, 2,300 linear feet of waterline relocation and lowering, 1,700 linear feet of sanitary sewer line relocation and adjustment, and pavement repair from West Prairie Street to the beginning of the open channel near the intersection of West Mulberry Street and Bernard Street; providing for the expenditure of funds therefor; and providing an effective date (File 6625 awarded to Freese and Nichols, Inc. in the not -to -exceed amount of $1,200,000). The Public Utilities Board will consider this item on December 11, 2017. Attachments: Exhibit 1 -Agenda Information Sheet.pdf Exhibit 2 -Project Map.pdf Exhibit 3-Ordinance.pdf Exhibit 4-Contract.pdf B. ID 17-1691 Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or designee, to execute non -disclosure or confidentiality agreements as needed; providing for a repealer; providing for a severability clause; and providing for an effective date. Attachments: Exhibit 1 - Agenda Information Sheet.docx Exhibit 2 - NDA Confidentiality Delegation Ordinance - Final - Signed 3. 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 Page 6 Printed on 121812017 City Council Meeting Agenda December 12, 2017 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 IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1 -800 -RELAY -TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. Page 7 Printed on 121812017 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1171, Version: 1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding the Energy Management Organization Review being conducted by Deloitte. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton _ city Hale 41"I&IMMM215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: City Manager's Office CM/ DCM/ ACM: Bryan Langley, Deputy City Manager DATE: December 12, 2017 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the Energy Management Organization Review conducted by Deloitte. BACKGROUND Staff contracted with Deloitte and Touche LLP ("Deloitte" or "D&T) to perform an independent assessment of the estimated savings and model of the Energy Management Organization, an in-house division of Denton Municipal Electric that was created in 2014 to manage the utility's electric supply portfolio and perform all required scheduling, regulatory, and settlement activities. A goal of implementing the EMO was to achieve cost savings compared to outsourcing the function to a third party, as had been done previously. Deloitte performed a retrospective assessment of the savings calculations and model used by the EMO for FY2015 and FY2016. Deloitte presented their findings to the Public Utilities Board on September 11, 2017 and to the City Council on September 12, 2017. Following the retrospective assessment and presentation, next steps were proposed for Deloitte to perform a second phase of work to 1) perform an analysis of alternative benchmark calculations to be used for FY2017 and going forward and 2) perform an independent assessment of the EMO's current and future capabilities required to support the EMO's mission, energy management, and risk management activities. PUB recommended approval of an amendment to the contract for this second phase of work on September 25, 2017 and City Council approved the amendment to the contract on October 10, 2017. Stephen Engler, Managing Director of Energy & Resources, and Timothy Metts, Senior Manager of Energy & Resources, of Deloitte will present their report and findings to the Public Utilities Board on Monday, December 11 and to City Council on Tuesday, December 12. Please find attached a copy of the report and presentation (Exhibit 2 and 3), as well as a letter with DME management's response (Exhibit 4). PRIOR ACTION/REVIEW (Council, Boards, Commissions) September 11, 2017 — Deloitte presented their assessment of the cost savings model for the EMO for FY2015 and FY2016 at the September 11, 2017 Public Utilities Board meeting. September 12, 2017 — Deloitte presented their assessment of the cost savings model for the EMO for FY2015 and FY2016 at the September 12, 2017 City Council meeting. September 25, 2017 — An amendment to the contract with Deloitte to perform the second phase of work was considered by the PUB and recommended for approval. October 10, 2017 — An amendment to the contract with Deloitte to perform the second phase of work was considered by the City Council and awarded. FISCAL INFORMATION A contract with Deloitte was approved by Purchasing staff on May 25, 2017 in the amount of $26,000 and a First Amendment was approved by the City Manager on July 25, 2017 in the amount of $60,000. A Second Amendment was approved by City Council on October 10, 2017 in the amount of $145,000, for a total contract amount not -to -exceed $231,000. 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: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities FXHTRITC 1. Agenda Information Sheet 2. Report 3. Presentation 4. Management Response Respectfully submitted: Bryan Langley Deputy City Manager Prepared by: Sarah Kuechler Assistant to the City Manager Deloitte., Denton Municipal Electric ("DME") Recommendations for DME's Energy and Risk Management Program December 2017 This report and corresponding recommendations are intended solely for the information and internal use of Denton Municipal Electric ("DME'), and is not intended to be and should not be used by any other person or entity. No other person or entity is entitled to rely, in any manner, or for any purpose, on this report and corresponding recommendations. TABLE OF CONTENTS STATEMENTOF WORK.......................................................................................................................................................................................................... 3 SCOPE, APPROACH, AND ASSUMPTIONS............................................................................................................................................................................... 3 Task1: FY 17 Benchmark Analysis................................................................................................................................................................................... 3 Task2: Risk Assessment................................................................................................................................................................................................. 3 TASK1: DELIVERABLE.......................................................................................................................................................................................................... 5 ANALYSIS OF FY 17 BENCHMARK ALTERNATIVES............................................................................................................................................................................. 5 AN ALTERNATIVE TO COST SAVINGS............................................................................................................................................................................................ 6 DELOITTE'S RECOMMENDATION................................................................................................................................................................................................. 8 TASK2: DELIVERABLE.......................................................................................................................................................................................................... 9 SCOPE.............................................................................................................................................................................................................................. 9 CAPABILITYMATURITY MODEL................................................................................................................................................................................................... 9 HOW WAS THE CMM USED AND WHAT ACTIVITIES WERE INVOLVED?....................................................................................................................................................... 9 THE CMM ACTIVITIES INCLUDED THE FOLLOWING: ........................................................................................................................................................................... 9 REPORT CONTENTS AND ORGANIZATION....................................................................................................................................................................................... 10 EXECUTIVESUMMARY............................................................................................................................................................................................................ 10 CAPABILITY MATURITY MODEL CAPABILITIES.................................................................................................................................................................. 12 CAPABILITY MATURITY MODEL SUB-CAPABILITIES........................................................................................................................................................................... 12 RISKS.............................................................................................................................................................................................................................. 12 DETAILED GOVERNANCE RECOMMENDATIONS................................................................................................................................................................... 13 DETAILED PEOPLE RECOMMENDATIONS............................................................................................................................................................................ 18 DETAILED PROCESS RECOMMENDATIONS.......................................................................................................................................................................... 19 DETAILED TECHNOLOGY RECOMMENDATIONS................................................................................................................................................................... 25 APPENDIX: CAPABILITY MATURITY MODEL DETAIL........................................................................................................................................................... 28 This report i, h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. STATEMENT OF WORK This Statement of Work between Deloitte & Touche LLP ("Consultant" or "we" or "bur") and City of Denton (the "Owner" or "you") was to provide an analysis and recommendations in support of establishing Denton Municipal Electric's ("DME") the FY 2017 Energy Management Organization ("EMO") cost savings benchmark (the "Services"). SCOPE, APPROACH, AND ASSUMPTIONS The nature of the Services that the Consultant is to perform for the Owner can be broken into the following tasks: • Task 1: FY 2017 benchmark cost analysis • Task 2: EMO capability maturity assessment The scope of work will focus on helping the Owner and DME establish a benchmark for FY 2017 that is representative of the capabilities of the EMO. The approach to providing these services includes: Task 1: FY 17 Benchmark Cost Analysis Key Activities: • Assess the appropriateness of different methodologies for calculating the FY2017 cost savings, including the following: o A benchmark method initially identified by DME for FY 2017: 3.5 heat rate adder over the DAM ERCOT index for energy o A benchmark method based on the following approach - Compare actual performance to the market forwards as of a particular date for the energy component • Identify the advantages and disadvantages between benchmark different options • Recommend an option going forward for the City of Denton and DME's consideration Task 2: EMO Capability Maturity Assessment Key Activities • Gain an understanding of DME's current energy risk management governance structure, control activities, resources and technology, including the possible risks assumed by DME with the creation of the EMO • Interview specific Owner and DME personnel involved in the execution of the EMO program in order to develop an in-depth understanding of EMO's existing activities. • Identify potential gaps and develop recommendations utilizing our proprietary Capability Maturity Model • Review our findings and recommendations with appropriate Owner and DME personnel This report i, h,te,,ded solely for the mf—i- and h,tem,l use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 3 Advise DME management in their preparation for specific stakeholder discussions (e.g. Board of Directors, senior management, City Council) to gain agreement and consensus on their desired future state program This report i, h,te,,ded solely for the mformwi- and mt—1 use ofDME, and sh,,Idnot be used or relied upm, by any other p,,,,, or mtiry. 4 Task 1: Deliverable Analysis of FY 17 Benchmark Alternatives D&T independently compared selected options based on input from DME. The options are: Option 1: ERCOT Index Plus is a +3.5 heat rate adder over the day -ahead market ERCOT index Option 2: Compare actual performance to the forward price for electricity as of 09/30/2017 The results of our analysis and the respective cost savings are displayed in the exhibit below. Exhibit 1: Comparison of FY17 benchmarks alternatives 7 D&T Calculation Category Option O day -ahead + 3.5 $ 36,868,926 Benchmark Costs ............................................................................................................................................................................................................................................................................................................................................................ D&T Calculation Option O without heat rate adder $ 28,952,360 D&T Calculation Option O 9-30-2016 Forward Curve $ 30,618 559 EMO Costs Provided by EMO EMO Costs $ 26,537,952 D&T CalculationI, Option O day -ahead + 3.5 $ 10,330,974 Savings D&T Calculation Option O without heat rate adder s 2,414,407 D&T Calculation Option ) 9-30-2016 Forward Curve s 4,080,606 D&T has preliminary concluded that there are FY17 cost savings with either approach, but there are significant differences when comparing the two options. The disadvantage of Option 1 is that the benchmark is consistently moving with the Day Ahead market, which allows the cost savings to always contain a premium. When eliminating the 3.5 This report i, h,te,,ded solely for the nnf—Mi- and h,temal use ofDME, and shouldnot be used or relied up,,, by any other p,,,,, or mtiry. 5 heat rate premium on Option C, the cost savings is reduced by —$8 MM. Using the 9-30-2016 forward curve for ERCOT North ATC ($/MWh) creates a clearly defined benchmark allowing for a consistent comparison of actual results; however, it does not consider DME's objectives and how the utility's energy and risk management activities support those objectives. An Alternative to Cost Savings If you assume that the objective is to assess the performance and value of the EMO, it should be focused on desired outcomes and how well the EMO achieves the outcomes. The outcomes should be mapped to objectives or a quantitative statement of what the EMO is trying to achieve. For example, what would be considered good outcomes for the EMO, DME and its customers? It should consider: Stable electricity rates when prices rise Competitive and lower rates when prices fall How do you accomplish this? By having a set of paired and market -compatible objectives By having a hedge strategy and risk limits that have been demonstrated to achieve those objectives • By having the risk infrastructure (data capture, risk quantification, and monitoring) in place to know when to act The following is an example of a set of paired and clearly defined objectives: Exhibit 2: Illustrative objective statements This report i, h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 6 To fill the framework with specifics surrounding the risk limits, it's important to understand the magnitude of hedgeable risk inherent in the business. This is done by developing a risk profile using financial engineering methods. This approach generates a range of prices applicable to the hedgeable portion of the utility's risk exposure. This allows for a determination of a probabilistic range of exposure for costs, rates, or any other financial objective. By quantifying exposure, improved transparency allows for a structured approach to assessing organizational risk tolerances and the management of uncertainty due to commodity prices and volume. With a clear picture of the range of possible outcomes, you may then have informed conversations with key decision makers about how much price and volume risk the organization would like to mitigate from its operations and thus the objectives and the risk limits to manage the exposure. The end result of this process is a structured approach to developing appropriate objectives and ensuring that they are clear, quantified, and actionable while also developing a pre -approved approach where trade-offs are discussed and made. When this is done, it is simple to measure actual performance against market results to understand how effective the energy and risk management activities were in mitigating unfavorable outcomes. The exhibit below provides an illustrative example of how performance can be compared to risk limits and market outcomes to assess the value added by the energy and risk management function. This report i, h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 7 Exhibit 3: Translating objectives into risk limits and a performance measurement framework: Rate Objective 5% Market Increase 1�.3% Rate Increase of 21% Above Market $1 million ,'. Option Hedge Loss Budget Objective Represents the objectives as set at the outset of the FY and establish the performance benchmark for measure the performance of the EMO and the effectiveness of the hedge strategy At the conclusion of the FY, the actual outcomes can be measured and compared against the objectives as agreed to at the start of the FY. The "do nothing' scenario can also be measured and used to understand how much better the outcome was than the market. The ideal goal would be to manage the tension between different objectives in Exhibit 2 above. By designing a risk acceptable, budget conscious, active & balanced hedge strategy that has been thoroughly simulated, one can create measurable and quantifiable objectives and risk limits as shown in Exhibit 3. The exhibit above provides difference conclusions based on different scenarios, which can help evaluate the performance and effectiveness of the hedge strategy. D&T's Recommendation Based on this approach, D&T recommends the following: 1. Focus less on cost -savings and more on a value based approach with a set of paired and market -compatible objectives 2. Quantify the utility's risk profile 3. Design a hedge strategy and risk limits aligned to the objectives 4. Simulate a comprehensive set of hedge alternatives and test actual outcomes against the objectives. lis. Select the appropriate hedge strategy for the utility. Re-evaluate the strategy on a periodic basis depending on changing organizational objectives and market conditions This report i, v,te,,ded solely for the mf—i- and v,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. S Task 2: Deliverable Scope Deloitte & Touche LLP ("D&T") was engaged by City of Denton ("Denton" or "Company") to complete an assessment of the Denton Municipal Electric's ("DME") Energy Management Organization ("EMO") program. This includes an assessment of the current state of the energy and risk management program ("Program") and to support the development of the desired future state, including recommendations for future improvements. Capability Maturity Model The assessment consisted of leveraging D&T's proprietary Capability Maturity Model ("CMM") to gain an understanding of the current processes and systems. The CMM is a proprietary framework used to assess the extent to which current risk management programs and activities are consistent with desired future state based current risk profile, business model, and industry sector. The CMM consists of four major dimensions: Governance, Process, People and Technology. These dimensions serve as baseline to assess the current state and identify the desired future state across three evolutionary levels (Developing, Prevalent, and Leading). The assessment is summarized in the exhibit below and the details can be located in the appendix of this report. How was the CMM used and what activities were involved? The CMM is used to assess the current state of a company's existing risk management program and help determine future state aspirations. D&T approached the risk assessment by collecting and evaluating data, conducting discussions with key stakeholders, and developing findings and recommendations. The CMM activities included the following: • Gain an understanding of DME's current energy risk management governance structure, control activities, resources and technology, including the possible risks assumed by DME with the creation of the EMO • Conduct discussions with specific Owner and DME personnel involved in the execution of the EMO program in order to develop an in-depth understanding of EMO's existing activities. • Identify potential gaps and develop recommendations utilizing our proprietary Capability Maturity Model • Review our findings and recommendations with appropriate Owner and DME personnel • Advise DME management in their preparation for specific stakeholder discussions (e.g. Board of Directors, senior management, City Council) to gain agreement and consensus on their desired future state program This report is intended solely for the information and internal use of DME, and should not be used or relied upon by any other person or entity. 9 Report contents and organization The following report provides recommendations for DME's consideration as part of an effort to support the continued development of the energy and risk management program. Our services included interviews with DME personnel and a review of pertinent documents, but did not include testing the controls and processes of any of DME's existing energy and risk management operations. During our interviews at DME, D&T focused on gaining an understanding of DME's current capabilities and risk management processes, as well as gathering input on the desired future state of the Program at the company. Through these discussions, DME management highlighted certain points as being important to the organization's current and future risk management approach. Further, D&T was able to make observations and recommendations to support the future state of the Program. These observations and recommendations were made based upon our understanding of the company's strategic objectives, risk tolerance, culture and existing organizational structure. Taken together with D&T's view of leading practices at peer companies, the following high- level common themes were noted as they relate to the desired future state of the Program at DME. Executive Summary During our interviews with DME, we gained a thorough understanding of the design and operation of DME's energy and risk management program and objectives. Through these discussions, DME highlighted certain points as being important to the organization's approach to executing risk management capabilities. This information was used to enable us to make observations based on specific program elements that are of particular importance to the energy and risk management program, especially in its risk management objectives, governance and oversight, reporting facilitating systems, and effective organizational structures. Taken together with Deloitte & Touche LLP's view of common practices across the municipal power industry, the following summary of the results of the assessment was prepared and several high level observations were made: Observation #1: A strong and clearly defined committee hierarchy is a key component in a strong hedge program. A common industry practice includes creating cascading levels of responsibilities from a primary oversight body (e.g. City Council or Public Utility Board) to a Risk Management Committee and down through the organization via a Director of Risk or similar role. It is clear that DME has given much thought and put forward significant effort to design a governance and oversight hierarchy appropriate to the energy and risk management objectives; however, there are opportunities to restructure the governance hierarchy to facilitate a streamlined oversight process while still involving the same key oversight groups. Observation #2: The energy and risk management program's governance documentation is a series of key supporting documents that help clearly articulate and codify oversight responsibilities throughout the organization while defining the overall risk management This report is intended solely for the information and internal use of DME, and should not be used or relied upon by any other person or entity. 10 -"; 1 N �AI� VIII VIII IIIIIIIIIII�ll iio Recommendations - - Governance .......................................... „,,,,,,......... -,.,.,.,.,.,.,.,. .,.,.,.,.,.,.,.,. ..,.,.,.,.,. .,.,.,.,.,.,.,.,. ..,..,.,.,.,.,., .,.,.,.,.,.,.,.,. .,.,.,.,.,.,.,.,., ................................................. • High Priority: 12 ��. O�Regulatory Medium Priority: 10 Operational Compliance Risk Market Risk Compliance Current State Recommend d State Low Priority: 2 ..... ..... .... .... .... .... .... :... Lquidity Risk .... Process High Priority: 2 Commodity Price Risk m6O /(� Medium Priority: $ Model/System Risk Physical Delivery Risk Low Priority: 15 Transaction Processing Operational Compliance Risk People High Priority:1 ” Medium Priority: 2 Operations Compliance Risk i • Low Priority: 0 Technology High Priority: 1 Systems Risk • Transacting Processing Risk (� Medium Priority: 3 Operational Compliance Risk fly' Market Risk • Low Priority: 4 Credit Risk High, medium and low priorities were determined based on Da T's understanding of common and leading industry practices and our view of the risk mitigation benefits of inrplenrenthgj the reconvnendetion- Observation #1: A strong and clearly defined committee hierarchy is a key component in a strong hedge program. A common industry practice includes creating cascading levels of responsibilities from a primary oversight body (e.g. City Council or Public Utility Board) to a Risk Management Committee and down through the organization via a Director of Risk or similar role. It is clear that DME has given much thought and put forward significant effort to design a governance and oversight hierarchy appropriate to the energy and risk management objectives; however, there are opportunities to restructure the governance hierarchy to facilitate a streamlined oversight process while still involving the same key oversight groups. Observation #2: The energy and risk management program's governance documentation is a series of key supporting documents that help clearly articulate and codify oversight responsibilities throughout the organization while defining the overall risk management This report is intended solely for the information and internal use of DME, and should not be used or relied upon by any other person or entity. 10 program framework and how the organization should promote compliance with the program. The governance documentation may consist of multiple documents, but starts with a single document referred to as the Risk Policy ("Policy"). Based upon our review of DME's documentation, most, if not all, of the common elements are in place and the document is consistent with common industry practices. The following governance recommendations, we have identified several areas were enhancements could be made to further strengthen the Risk Policy as well as subordinate procedure manuals. Observation #3: In addition to adding the appropriate governance and oversight, DME should also ensure that a clearly defined process for setting objectives, designing hedge strategies, and testing each hedge strategy is developed and executed. This is a key step in developing an effective hedge program. This process should start with an assessment of DME's risk profile and should serve as a foundation for the development of a risk appetite and specific objectives. This should help the organization hypothesize a set of risk management program objectives. Typical objectives include: • Rate -at -risk • Earnings at -risk • Hedge losses at -risk • Credit and collateral at -risk DME should better understand how different hedge strategies that may potentially reduce exposure in DME's portfolio and ensure the financial outcomes are consistent with the corporate objectives and risk appetite. The step to fulfill that process should include rigorously testing how different sets of hedging decisions perform over time and the outcomes of those hedge decisions compare to the hypothesized program objectives. This is intended to create an understanding of the types of outcomes to be executed, educate the organization and oversight authorities about the specific risk strategy which will be executed, and ensure that surprises are minimized. Finally, it helps to create a better understanding for how effective a particular hedge strategy is in achieving the program's objectives. The analysis should help define the specific risk limit values for the fiscal year and should be formally documented in the RMP and monitored by the Middle Office. Hedge strategies should be simulated and tested and reviewed at least annually. Observation #4: DME has several different systems, tools and spreadsheet to help support the various groups and functions; however, it is currently unclear as to how DME will support the capture, valuation, risk quantification and reporting going forward. As DME moves forward, it will be important to ensure a fit -for -purpose technology solution is developed to support the execution of the hedge program. While the solution could range from spreadsheet -based to a fully implemented Energy, Trading, and Risk Management ("ETRM") system, important consideration should be given to providing the appropriate functionality. Key areas to focus on include: • Risk quantification — at a portfolio -level • Risk reporting capabilities — at a portfolio -level • Position reporting • Credit risk measurement and reporting • Compliance and monitoring — at transaction, user, and portfolio -levels • User roles and responsibilities • Automated price, volatility, and correlation feeds/calculations • Dashboard and summary level reports The ability to address these capability areas should create greater transparency and support the higher level of oversight needed in the Program. This report is intended solely for the information and internal use of DME, and should not be used or relied upon by any other person or entity. 11 Capability Maturitv Model Capabilities Risk Governance Hierarchy Risk Management Policy Hedge Program Design Delegation of Authority Knowledge Sharing Training and Development Roles and Responsibilities Adequacy of Resources Risk Department Structure Product Requirement Forecasting & Planning Pre -trading activities Pre -trade analytics Position, P/L, Risk Reporting Stress -testing Settlement Accounting Controls Credit Data/Risk Inputs Reporting Controls Capability Maturity Model Sub -Capabilities Governance Risk Governance Hierarchy People Knowledge Sharing Process Communication Technology Visibility of All Risks / Commodities BOD Oversight Roles and Responsibilities Master Agreements Deal Capture Risk Management Committee Adequacy of Resources New Products Review and Approval of Market Data Sourcing and Segregation of Duties ("SOD") Risk Department Structure Tactical Meetings Valuation Methodologies RMP Policy and Administration Trade Analysis and Comparison Against Limits Planned Reporting Policy Updates Position Reporting Confirmations Objective -setting and Hedge Strategy Design Mark -to -Market Process Transaction Completeness and Accuracy Risk Profiling and Hedge Strategy Analysis Market Data Sourcing End of Day Processing Risk Appetite Limit Reporting and Monitoring Risk Limits Management Reporting Format and Frequency Book Structure At_Risk Measures Delegation of Authority ("DOA") Scenario Analyses Back testing Risk Measurements Actualization SettlementDiscrepancies G/L Reconciliation - Realized and Unrealized P&L Links between hedge and exposure Controls Processes Credit Rating Methodology, Limit Setting, and Review Collateral Management Risks Risk Liquidity Risk Financial Counterparty Default Risk OperationsMarket Systems Risk Model Risk Commodity Price Risk Physical Delivery Risk Transaction Processing Risk Asset/Performance Risk Congestion Risk Operational Compliance Risk Renewable Variability Risk Basis Risk ., Policy Load Servicing /Following Risk ., Administration DOA SOD Regulatory Compliance Risk This report is nrte rded solely for the vrformati- and h,temal u,, ofDME, and shouldnot be used or relied upmr by any other p,,,,, or mtiry. 12 Detailed Governance Recommendations 1.1.1 j The Energy Risk Management Policy ("ERMP") outlines the following risk 1 Recommendation 1.1.1 j Risk ) Risk Governance j governance hierarchy; (1) The City Council ("CC") delegates the executive i i Governance Hierarchy oversight of the DME to the Strategy Committee ("SC"); (2) The Public ) Rl: Review the current Energy Risk Management Policy ("ERMP") and i Hierarchy ) Utilities Board ("PUB") is an intermediary that provides recommendations j dete rnine whether the governance hierarchy, as originally designed, 113: j 113: High to the SC and CC; (3) The SC's responsibilities include ensuring program j continues to be the appropriate oversight model, 1 Operations 1 strategies are consistent with overall City goals and obligations as well as ) Risk 1 has the authority to approve certain program element; and (4) The j Refer to Recommendation 1.1.3.113 1 Operational Committee ("OC") reviews executed transactions, monitors proximity to transaction limits, and oversees implementation of DME's 1 112; Update the ERMP and the EMO Procedures Manual to reflect day -to - strategic plan with regard to management of DME's energy portfolio. day, monthly, quarterly and annual practices within the organization, as 1 j i 1 well as the commercial and risk oversight strategy going forward, Obtain ; 112: 1 112: High While the risk governance framework is documented within the ERMP and 1 an annual acknowledgement of the ERMP, and subordinate appendices, j Operations j the Energy Management Organization ("EMO") Procedures Manual, the j procedures and documents, from relevant employees, j Risk execution of the oversight does not currently take place as originally i designed, The Procedures Manual as currently written is outdated, in part j Refer to Recommendation 1.2.1.113 1 likely due to turnover at DME, City Council, PUB, and in the City Manager's j 1 department. Examples of EMO activities that differ from the ERMP/EMO 1 Procedures Manual include; • Reporting to the CC/PUB • SC/OC meetings and reporting • Annual review and approval of the ERMP • Rate -at -Risk metric ' 1.1 1.1.2 onconversations with the DME staff, it a ears that Recommendation r 7 Risk BOD Oversight !Based i fewer CC/PUB meetings than required by the EPRM. As mentionedraabove, Rh Determine oe appropriate meeting frequency for DME risk reporting to 1 111: � 111: High Governance some of this is like) due to changes in the composition of DME personnel, y g p p should )the CC. The frequ ncy should be consistent with the level of oversight Th frequency j Operations j Hierarchy ) the City Council and the PUB, j required of the CC and there should be a pre -defined standing agenda, j Risk Reporting should include pre -reads to be provided to the CC with enough 1 Risk management reports have not been consistently delivered to the )lead time to allow the CC to review the report and prepare for the meeting. � Council and PUB by DME. As an example, it is D&T's understanding that jonly one CC meeting has been conducted since EMO operations have 1 R2; Develop a quarterly risk management report with the appropriate j begun, 1 detail to support the CC's oversight responsibilities. This could include key 112: Medium jportfolio risk metrics, risk limits and hedging compliance status, market Operations j conditions and other risk data that will equip the CC with the information j necessary to make decisions and provide governance oversight. Risk j Suggested reporting topics include; • Executive summary of forward transacting activity • Market conditions • Noteworthy news items (e.g. energy, counterparty, regulatory) • Reporting on risk limits, including status of key objectives (e,g. FY 1 benchmark) • Non-compliance with limits and other ERMP requirements • Upcoming activities/decisions (e.g. risk policy review/updates, hedge strategy update, congestion analysis) 113; Develop and deliver periodic training to the CC/PUB. The training 1 113: j should include the fundamentals of energy markets and commodity trading j Operations 1 113: Medium in order to provide the CC/PUB with a better understanding of the utility j Risk operations and the risk management program. This will help facilitate more ) i productive risk meetings with the CC/PUB. This report is h,tended solely for the nuformati- a,d h,tem,l use ofDME, and ,houldnot be used or relied up,,, by any other pe,,,, or entity. 13 j 1.1 j 1.1.3 Current St.. j The ERMP delineates the roles and responsibilities of the SC, which is Recommendations j Recommendation 1.1.3. 1 Risk 1 Risk Management 1 responsible for the development of the risk strategy, while the OC is 1 Rl: Consider establishing a single Risk Management Committee ("RMC") R3: 1 113: High 1 Governance 1 Committee 1 focused on monitoring the execution of the strategy by the Front Office, 1 using a hybrid of both the existing SC/OC to provide oversight of the Front Operations j Hierarchyj i Office ("FO"), Middle Office ("MO"), and Back Office ("BO'). It is j Risk jThe SC responsibilities include: j recommended that the RMC consist of senior personnel that represent a Quarterly meetings j cross—section of the organization in order to provide transparency Regulatory Responsible to the CC/PUB for executive oversight j between DME and the CC/PUB. We recommend that the RMC consist of the 1 Compliance Report results of the EMO activities and compliance with the policy to j following members: ? Risk the CC/PUB on an annual basisDeputy City Manager/COO j Market Risk • General Manager 1 The OC responsibilities include; Division Manager, Regulatory &Risk Reporting to the SC on policy compliance Executive Manager, Power, Regulatory & Legislative Affairs Market condition Business Manager, Finance Dept. Electric Administration Projected future forecasts Deputy City Attorney - Legal Financial results i i j R2; Establish a chairman to oversee the RMC. The Chairman of the RMC jFrom discussion with DME staff, the frequency of meetings has not been j should maintain voting rights and should be the primary liaison between j consistent, as required by the ERMP. Additionally, it is D&T's understanding j the City Council, General Manager, and the RMC. ) 112: ) 112: Medium j that the SC and OC have conducted joint meetings to discuss operations as ) 1 Operations well as strategy, ) The Chairman should also have the responsibility for overseeing the day- 1 Risk 1 to-day efforts of the risk control function. At a high-level, these responsibilities will include understanding and measuring market risk, 1 validating risk mitigation activities, hedge strategy compliance, and risk jreporting. Additional resource(s) should provide analytical support to the j Chairman so that he/she may fulfill day-to-day oversight responsibilities, i jR3; Establish appropriate and consistent guidelines for conducting RMC j meetings, The RMC should maintain quorum and voting procedures and I should be responsible for overseeing and executing the requirements of the risk policy and procedures. The voting procedures, including tie-break ) jprovisions, should be documented within the ERMP, 1 113: 1 113: Medium 1 R4; Risk Management Committee meetings should be regularly scheduled, j Operations 1 perhaps quarterly, and a standard set of reports should be prepared and Risk i j distributed by the Chairman in advance of the meeting, j Market Risk 114: i 114: High Operations Risk 1.1 documentedin the EMO ) Recommendation Risk Segregation of Procedures and are understood dresponsibilitiesby DME However, it sED&T'sand Rh Rev' date the organizational chart on an annual or as-needed R3: ) R3: Medium jGovernance j Duties j understanding that all the responsibilities as outlined are not always j basis to account for any material organizational changes. Adjust any j Operations j Hierarchy j adhered to, j policies and procedures that reference the organizational chart to ensure j Risk j consistency. Additionally, consider updating job descriptions in order to While in the most recent organization chart, the MO is independent from j help ensure that all DME personnel understand their role in the energy and j the FO organization, the BO currently reports into the FO. It is atypical to j risk management program, 1 have the BO report into the FO, 1 R2; Consider moving the BO group (i.e. Energy Services) to a group within 1 1 the utility that is independent of the FO to avoid any potential segregation 1 of duties conflicts and to better align business units with the similar 1 112: j R2: Low .I. objectives, 1 Operations .�.... .� This report is h,tended solely for the nuformati- a,d h,tem,l use ofDME, and ,h,,Idnot be used or relied up,,, by any other pe,,,, or entity. 14 Current state Recommendations i Risk jRefer to Recommendation 1.1.1.112 i jRefer to Recommendation 1.2.1.114 ' ) ins man of risk on 1 1.2 Risk i 1.2.1 i The current ERMP contains y policy elements we observe Recommendation2 1 Management RMP Policy and ;typical energy industry risk policies. However, during our review, we Rl: Coy expanding Appendix A of the ERMP to include a wider range 1 111: j 113: High Policy Administration identified two gaps: �Rmlllm ( g. limits, volumetric limits by day/week/month, and risk Operations Appendix A: Tralnsac Limits of the ERMP does not contain certain pp ) and a clearly documented process for monitoring and reporting non - Risk elements (i.e. instrument, products, and risk limits) typically observed j compliance with the limits. in energy management policies. Appendix E: Transaction Types of the ERMP appears to comingle R2: Consider updating Appendix E of the ERMP to be specific about products and instrument types and does not clearly identify what is j permissible products and instruments. This should include specificity about j 112; 1 112: High permissible and what is not. 1 what commodities (e.g. power, natural gas) are authorized, what j Operations 1 derivative instruments are allowed (e.g. swaps and options), and what j Risk As mentioned above, the ERMP and EMO Procedures Manuals, while 1 non-derivative products may be executed (e.g. congestion revenue rights) 1 current at the time of go -live, may be out of date due to a lack of periodic 1 reviews. This leaves a number of processes exposed to operational risk and j R3: Re-assess the ERMP and EMO Procedures Manual for any additional I potential non-compliance. For example: j gaps. Consider whether the policies and/or procedures are either current, The EMO Procedures Manual describes a rate at-risk metric, but it is j no longer applicable, or not feasible, If no longer applicable, eliminate that j R3: D&T's understanding that a rate at-risks is not currently being used, j procedure or policy element. If not feasible, re-assess to see what can be Operations ) R3:High The EMO Procedures describes using a book structure that does not accomplished. The assessment of the ERMP and EMO Procedures should ; Risk appear to be utilized and is not documented within the system of occur at least annually, but can also include verbal feedback, lessons record. 1 learned, and/or compliance related items that are identified throughout the j 1 course of the year. If changes are required, present the changes to the jRMC and the CC for review and approval. Regularly distribute the most j current ERMP and EMO Procedures Manual to ensure that most accurate j representation is documented, distributed, and followed. i 114; Ensure that the ERMP is properly adhered to by all personnel within the DME. Require formal and annual acknowledgment from all required jpersonal indicating full review and understanding of the policy. 1 115; Develop and maintain a compliance log that includes any operational 1 and/or procedural violations. This log can be used to monitor issues, and ? 114' 1 R4: Medium 1 the severity, frequency, and resolution of the issue. Operations j Risk R5: I R5: Low 1 Operations Risk 1.2 Risk ) 1.2.2 j It is our understanding that the ERMP has not been reviewed since the ) Recommendation 1.2.2. > > > Management )Policy Updates 1 date of the initial approval (March 4, 2014), nor have any policy updates Policy 1 been provided to the CC/PUB as mandated by the initially approved ERMP. ) Rl: Review and maintain a log of changes to the ERMP and EMO 1 Procedures Manual. Ensure all new/updated policies and EMO Procedures R1 : 1 113: Medium 1 Manuals are communicated and distributed to the organization. If not 1 Operations 1 .�. already centralized, consider establishing a centralized repository to store Risk ) .J This report is vtte�tded solely for the vtformatimt and vttemaluw ofDME, and shouldnot be used or relied upmt by airy other petsmt or �triry. 15 M- Fllri� C."em: State Recommendations the ERMP, RMP, and any related EMO Procedure Manuals to allow all 1 employees in the FO, MO, and BO access to the documents, J i Refer to Recommendation 1.2.1.114 I 1.3 .J. 1.3.1 While there is a clear consensus to manage end-user electricity rates for RecommendationRecommend i Hedge ii Objective -setting ) the City of Denton residents, it is not clearly defined how the objective will 1 Rl; A hedge strategy should be designed, implemented, and documented j R1: 1 R3: High Program ) and Hedge ) be met. Hedging and/or transacting decisions appear disconnected from 1 within the ERMP. The objectives and hedge strategy design process should j Operations 1 Design 1 Strategy Design 1 these objectives and are more typical of a hedge program that is driven by j be clearly documented, measurable, and rigorously tested via simulation. j Risk 1 market fundamentals rather than risk metrics and a clearly defined hedge j In the event that hedge decisions do not achieve program objectives, steps 1 1 strategy, j should be clearly defined to determine why the objectives weren't achieved j Market Risk j and how to re -align hedge decisions with program objectives to promote j improved effectiveness, 112; At least annually, re-perfo nn the hedge strategy simulations to confirm or update DME's ongoing strategy. An annual process will help to 1 foster better understanding of how different hedge strategies may j potentially reduce the natural exposure of DME's portfolio and ensure i ) 112: i j financial outcomes consistent with the utility's objectives and risk appetite. Operations 1 R2: Medium j This analysis will also help define specific risk limit for that fiscal year that j Risk j can be used to assess performance of the energy and risk management j function. These risk limits would in turn be formally documented in the j Market Risk j ERMP and monitored by the MO, j 1.3 j 1.3.2 j While there is ample evidence that robust and thorough planning and j Recommendation 1.3.2 Hedge ) Risk Profiling and ) fundamental analysis process exists, there is less evidence that the process) Rl: Quantify DME's risk profile at least annually. The MO should be j R1: 1 R3: High 1 Program 1 Hedge Strategy 1 considers the risk exposure of the unhedged native business (i.e. the 1 responsible for quantifying the risk exposure of the native business, j Operations li 1 Design 1 Analysis 1 exposure to over/under supply of electricity to meet customer demand). A 1 excluding hedges. This should include DME's exposure to both price and j Risk 1 risk profile helps to establish the utility's willingness to take risks, while 1 volumetric uncertainty. The risk profile should be based upon the most i jquantitatively defining the exposure to price risk. A risk profile can aide in 1 recent forecasts of energy product purchases and sales and be translated Market Risk j the development of the utility's objectives. j into the context of risk metrics relevant to the business (e.g. rates -at -risk, j cost -at -risk, mark -to -market at risk etc.), i jRefer to Recommendation 1.3.1.112 risk tolerances are not re isI 'that ...... ...... Recommendation j � 1 Hedge Risk Appetite evidence DME hs ese identified, defined, and do cumentearly dd in heeERMP Rl: and nti defining and quantifying DME's risk appetite and tolerances in1 R1: 1 113: Medium 1 Program 1 certain risks that the utility is exposed to through energy management j order to establish a framework for communication with the CC and PUB j Operations jDesign 1 operations (i.e. basis risk, credit risk, liquidity, market risk); however, j moving forward. The risk profile should quantify the utility's risk exposure j Risk 1 there is no clear link to risk appetite or risk tolerance, j and provide a quantitative data point for articulating the utility's risk j appetite. This should cascade into clearly defined risk tolerance and risk i Market Risk limits, 1 1.3 1 1.3.4 1 There are transaction authorization limits established for the FO but no risk 1 Recommendation 1.3.4, Hedge i Risk Limits limits, Based upon our review of the EMO Procedures Manual, a rate at- Rl; Consider developing and implementing risk limits clear) linked to a RS: 113: High Thisrep t, h,tendeds 11, for the nufo t-a,dh,tem,luse ofDME,and,h,,Idnotbeusedorreliedup,,,byanyotherpe,,,,orentity. 16 NIMXZ=, 1 Program j risk metric was identified, but not currently being used, and thus there are )financial objective such as rate at -risk, j Operations 1 Design j no risk limits associated with the metric, j Risk The RMC should maintain the responsibility for reviewing and approving j Market Risk jportfolio risk limit structures and trading authorities within the parameters j provided by the CC. The RMC should monitor compliance with established 1 risk limits via monthly RMC meetings and the MO should be responsible for ) 1 monitoring them on a daily basis. i jRisk limits should be clearly defined and quantifiable. Some examples of j potential risk metric that could form the basis for relevant risk limits include: • Rate at -Risk • Cash Flow at -Risk • Mark -to -Market at -Risk • Credit and Collateral at -Risk 1 The development of the risk limits should be accompanied by pre -approved ) jrisk mitigation strategies (or hedge decision frameworks) for addressing limit breaches. This will allow for the rapid mitigation of exposure should j commodity prices and/or volatility move unfavorably for DME. j 1.3 1.3.5. The curve energy g g ("ETRM") system lacks the current ener trading management j Recommendation 1.35. 7 ) Hedge Book Structure capability to appropriate) define DME's book structure. This y in turn limits j Rh Once a new ETRM system has been identified and implemented, the j R1: j 113: Medium jProgram j the organization's ability to support reporting in the format and granularity j book structure should be documented in the EMO Procedures Manual, j Transaction j Design j required by management and oversight bodies. DME is currently in the ) approved by the RMC, and embedded in the ETRM system. The book j processing jprocess of identifying and acquiring a system capable of supporting the 1 structure should be re-evaluated on a periodic basis to ensure alignment j Risk 1 book structure and reporting requirements. 1 with the utility's goals and objectives. j 1.4 j 1.4.1 j The most recent Delegation of Authority memorandum (Authority to j Recommendation 1.4.1. 1 Delegation of 1 Delegation of j Transact 7-7-17 Update), lists authorized transactions that are inconsistent 1 i 1 Authority 1 Authority ("DOA") j with Appendix A and Appendix E of the ERMP- Rl: Reconcile the DOA memorandum with the ERMP- Ensure that the DOA j R3: High 7 ("DOA") !1 7 memorandum does not extend authority that is different/inconsistent with R3: I the ERMP- 1 Operational 1 Compliance i 1 Refer to Recommendation 1.2.1.113 � Risk 1 Refer to Recommendation 1.2.1.112 This report is nrte rded solely for the vrformati- and h,temal u,, ofDME, and sh,,Idnot be used or relied upmr by any other p,,,,, or mtiry. 17 Detailed People Recommendations 2.1 2.1.1 The EMO regularly develops and delivers educational material to facilitate Recommendation 2.1.1 Knowledge Knowledge Sharing ongoing knowledge transfer within DME, the CC and the PUB. Regular 1 Rl; Continue to develop and deliver training to facilitate the knowledge 1 113: Resource 113: Medium Sharing weekly meetings are held to discuss pertinent items and activities and 1 transfer necessary to support the oversight requirements and execution of 1 Adequacy provides an effective vehicle for informal education and knowledge sharing. ii the utility's risk management strategy. Consider increasing the frequency Risk ii of such trainings in the short term to help offset the rapidly changing j Knowledge j organization. Potential training topics include: j Management • Hedge accounting j Risk • Risk modeling and analysis • Risk assessment • Market risk • Credit risk 1 R2: Encourage professionals to interact across the FO, MO, and BO either 1 112: Resource 112: Medium 1 within the organization or with other organizations. Participation in events 1 Adequacy j(i.e. lunch & learns) should allow individuals to get exposure outside of j Risk j their day-to-day responsibilities and allow individual growth in their j Knowledge j professional career. This will also help offset the recent organization j Management j changes and attrition, j Risk 2.2 2.2.1 The FO, MO, and BO roles and responsibilities are formally documented in Roles, Roles and the ERMP and the EMO Procedures Manual, but due to the recent changes Refer to Recommendation 1.1.1.112 Resources, Responsibilities in the organization, the individuals performing the activities have and significantly changed. 1 Structure ...., ...., ...., ...., ...., ...., ...., d } The organization year due to a number f) Recommendation 2.3.1 i last0 j Roles, Adequacy of q y reoroao¢ations andspeersonnel departures �hThis resulted in the Rh C g h i 1 onsider cross aining resources to create an appropriate level of j 113: Resource 113: High ) Resources, Resources remaining individuals being more highly utilized and generally increased redundancy across the front, middle and back offices. Adequacy and the level of responsibility for energy and risk management activities at all Risk Structure levels of the utility. 1 Refer to Recommendation 2.1.1.113 j Knowledge Management This is especially true in the MO, where currently, there is a single resource 1 Refer to Recommendation 2.1.1.112 ) Risk (Senior Risk Control Analyst) responsible for performing all day-to-day and j periodic MO functions. This includes, but is not limited to: Risk reporting Monitoring of risk policy compliance Contracts negotiation Credit risk management Transacting compliance There does not appear to be a backup or redundant resource to support the 1 MO function. 2.4 2.4.1 The Seni or Risk Control Analyst reports directly t� o the Interi'm Division None ) Roles, Risk Department Manager, Regulatory & Risk, which is functionally separate from the Resources, Structure trading function. and Structure This report i, h,tended solely for the nuformati- a,d h,tem,l use ofDME, and sh,,Idnot be used or relied up,,, by any other pe,,,, or entity. is Detailed Process Recommendations 3.1 ) 3.1.1 ) DME deploys a forecasting process which is benchmarked against multiple ) Recommendation 3.1.1. j Product ) Communication j external models (i.e. PRT and OSI) on a regular basis. In addition, there j Rl: Consult with the RMC to determine if the load forecasting methodology R1: 113: Medium Requirement 1 ) are detailed desk procedures to facilitate the following; ) approval process should be documented in the governance documentation. Operations Forecasting Development of the load forecast ) If it should be, review and approve the methodology and assumptions, The Risk 1 & Planning Identify the available generation resources 1 requirement to review and approval the methodology should be • Calculate the net position1 documented in EMO Procedures Manual, Load Serving • Identify the power requirements to balance the position. / Following i Risk jSince the current forecasting methodology selection and approval process Congestion j is not documented in the EMO Procedures, it is unclear whether the Risk forecasting methodologies have been formally reviewed and approved by Basis Risk j the SC/OC. Asset/ Performance Risk 3.2 3.2.1 The Senior Risk Control Analyst works in parallel Legalto ne negotiate Y P9 Reco � mmendation3.2.1. , Pre -trading 1 Master Agreements) master agreements (i.e. EEI, NAESB, ISDA, exchange/broker agreements), ) None 1 activities 1 DME is currently negotiating their 1st ISDA master agreement. 3.2 j 3.2.2 )Anew product approval p pp process does not exist. )Recommendation 3.2.3. ) Pre -trading 1 New Products j Rl: Develop a new product review and approval processes. The process R1: RS: Low activities) should be clearly documented in the EMO Procedures Manual, including; Operations • Approval process by the RMC Risk • Requirements to be reviewed and updated annually • Assessment of the risks, benefits and suitability relative to DME's energy and risk management objectives • Assessment of the impact to system requirements prior to trading the new product j 3.3 ) 3.3.1 )The EMO conducts weekly meetings to provide regular operational updates ) Recommendation 3.3.1 � Pre -trade ) Tactical Meetings ) to all relevant functions involved with the energy and risk management ) Rl: Given recommendations R1,3,1 - R1,3,3 above, it will be important to R1: 113: Medium j analytics j program, However, given the current lack of defined energy and risk ) evolve the agenda and discussion topics of the weekly meetings to include Operations 1 management objectives and a clearly articulated hedge strategy to achieve 1 a review of the following; Risk the objectives, the meetings and discussions are primarily operationally Current objectives 1 focused, Compliance with risk limits • Required hedging activity • Emerging risks • Key topics for presentation to RMC 3. 3.3.2 The FO has access to it position and credit reports created b the MO to Recommendation Pre -trade Trade Analysis and support trader decision however, it is unclear whether there is Rl: Establish a process and develop a report to monitor daily compliance R3: Market R3: Medium ) 1 analytics 1 Comparison 1 sufficient detail or review of the reports to support a comparison of 1 with all risk and hedge strategy compliance limits. This should include the Risk jAgainst Limits j transacting volume against transacting limits. Additionally, as identified 1 distribution of appropriate risk limit compliance reports to FO, MO, BO, and J above, there are some gaps in the c y/instrument/rist commodity/instrument/risk ,k limits that oversight bodies, The FO should, review the risk limit compliance report This report is h,tended solely for the vrformati- a,d h,tem,l use ofDME, and shouldnot be used or relied upmr by any other pe,,,, or mtity 19 Recommendation 3 would necessitate additional trade analysis and limit monitoring. 1 before any transactionsare executed, The MO should report non- compliance with approved risk limits when necessary and escalate issues when non-compliance is not remedied within a pre-defined and approved jperiod of time, 1 Refer to Recommendation 1.3.4,113 1 Refer to Recommendation 1.2.1.116 j 3.4 3.4.1 r ac The MO tracks the positions via spreadsheets due to limitations identified Recommendation � � �d � n 3A.1 1 j Position, j Position Reporting j in the existing ETRM, Prior to distributing position reports, the MO reviews j Rl: Ensure that the proposed vendor for the new ETRM provides R3: Systems R3: Medium j P/L, Risk j positions for completeness and accuracy; however, as noted above, the j functionality to create and distribute an automated position report. Where Risk j Reporting 1 limited risk control resources result in the same resource developing and j possible, leverage the automated position reporting to avoid inaccuracies reviewing the position reports, 1 when developing it manually, In the event that manual reporting remains, Transaction identify an additional resource to perform the quality control review that Processing occurs prior distribution of the report. Risk 3.4 i 3.4.2 1 The MO leverages a third-party price vendor an imports prices into an Recommendation P/L, Risk Process independent 3.4.2. d 1 mmendation jPosition, 1 Mark-to-Market Excel workbook to calculate the MtM on a dailybasis. The FO also receives Rl: Ensure that the proposed vendor for the new ETRM system provides R3: Systems R3: Medium j 1 � p ent prices, which are used to perform valuations in the existing 1 functionality to automate the MtM and P&L process. Additionally, as part of Risk 1 Reporting 1 ETRM, These prices are different from the third-party prices used by the j the ETRM implementation, develop a single process for sourcing price data j MO. On a periodic basis, a reconciliation is performed between the MO and j and quantifying the MtM. The daily MTM and/or P&L reports should be Transaction j FO valuations, However, the book of record remains with the MO, j available to all interested parties, while senior management should receive Processing weekly and/or monthly reports. There should be general acknowledgement Risk j that the P/L is accurate and differences should be documented and/or j explained. currently 1 Position, � Market Data pries The EMO Pro edures �Mlanual contains highelevel procedures dfor of Recommendation Expand ...,,, um P Re Expand daetin 3.4.3. 1 p market data sourcing and valuation methodologies in the R1: R3: Medium 1 P/L, Risk 1 Sourcing )managing the forward price curves, but lacks specificity on the detailed 1 EMO Procedures Manual Commodity j Reporting i approach, Price Risk 1 As part of the procedures, the data sourcing procedures should also 1 include; Operations • How broker quotes, exchange prices, and data publishers are Risk identified and validated • When it was approved by the RMC • A process to review and update it annually • Description for how it should be developed and maintained by the independent MO function i 1 The forward curve development and modification procedures should include: • Identification of the market data sources for all forward and spot prices, risk free interest rates, and implied volatilities used to support the valuation of all trade types approved for trading and risk management (including new products such as financial swaps and options). • Description of cleaning, validating, and formatting the data 1 I. '......... Descriptions of any price curve extension methodologies � This report is vttended solely for the vtformatimt and vttemal uw ofDME, and,houldtot be used or relied upmt by any other pe ,, or e,,tiry. 20 This report i, h,tended solely for the vrformati- a,d h,tem,l use ofDME, and sh,,Idnot be used or relied upmr by any other pe,,,, or mtity 21 • Descriptions of any illiquid price curve creation 3.4.4 j As discuss le the develops nd distributes on tion ) Refer to Recomm 3.3.2.R3 t ) tion Limit rti sit tis unclear whether the whetonall a daclear Pos ; and Monitoring ; hmMO Addition tithe thendation li rreport eport iscomparedda a ed against whether the it is unci Reporting pl aed m, report allows key stakeholders the oagainst 1 limits defined in the ERMP, 3.4,5O � provides s ,which ii The FO/MO p standard reports to both the SC/OC/PUB � Recommendation 3A.5. S j Position, j Management j include: i j P/L, Risk j Reporting Format Credit Exposure Report (Monthly) ) Rh Consider developing a standard reporting packing for the CC. This j Reporting j and Frequency Energy Market Risk Report (Quarterly) j could follow a similar format to the standard PUB reporting package, R1° 113: Medium • Transaction Performance Report (Quarterly). i Operations Refer to Recommendation 1.2.2.112 Risk However, there is not a standard report format that is defined for the CC. In addition, there have been fewer reports provided to the CC than were 1 required by the ERMP. 3.4 i 3.4.6 1 Per the EMO Procedures Manual, the financial exposure of DME's Total ) Recommendation mendation3A.6. ) Position, ) At -Risk Measures ) Portfolio Account shall be managed based on a rates at -risk (RaR) basis for ) Rl: MO should reconsider the at -risk metrics and measurement 113: Market 113: High P/L, Risk ) the upcoming 12-24 month period. During discussions, it was confirmed ) methodologies within the EMO Procedures Manual and ensure they are Risk 1 Reporting 1 that RaR is not used in practice. 1 updated at least annually. Credit Risk 1 R2; The MO should prepare a daily portfolio -level risk report. The report should be distributed on a daily basis to all members of the FO, MO, BO, 112: Market 112: High jand RMC. If DME decides that a RaR approach doesn't make sense for the Risk j utility, other of risk metrics might include: • Mark -to -Market at -Risk Credit Risk • Credit and Collateral at -Risk • Value at -Risk • Cash Flow at -Risk When determining the appropriate risk metric, consideration should be jgiven to the hedge strategy and program objectives. This report should support monitoring compliance with the corporate risk objectives and limits j approved by the RMC. 1 R3; An independent resource should periodically conduct a review of the 113: 113: Low daily portfolio -level risk report. The review should focus on the accuracy, Operations j frequency and distribution of the reports generated by the MO. Risk Model Risk j.i 3.5 ...., ) 3.5.1 ), .,., .,, .. ., ., ...., ) Scenario analysis and/or stress tests have not been conducted on a ..,., ., ...., ...., ...., ...., )Recommendation 3.5.1. ...., ...., ....� ) Stress- ) Scenario Analyses j periodic basis. ) Rl: The MO should perform regular stress -tests to ensure ongoing validityRS: Model RS: Low testing 1 of any at -risk metrics. Risk i 1 Refer to Recommendation 3A.6.113 and R2 Commodity Price Risk 1 Refer to Recommendation 1.1.1.112 This report i, h,tended solely for the vrformati- a,d h,tem,l use ofDME, and sh,,Idnot be used or relied upmr by any other pe,,,, or mtity 21 W -F M- ningi= ne=rerw M- -Tri Recommendation j 3.5 3.5.2 ? Back -testing of risk measurement metrics is nott performed. commendation 3.5.2. j Stress- j Back testi ng Risk j R1: MO should perform back testing of at -risk measurements annually. R1: Model R1: Low I testing j Measurements j This analysis should provide feedback and inform the calibration of risk Risk j measurements methodology. Commodity Price Risk 1 R2; Incorporate the updated back testing process in the EMO Procedures 1 Manual. The procedures should include documentation of the assumptions and procedures for performing annual back testing on risk measurements. R2o 112: Low Operations i Risk jR3: An independent resource should periodically conduct a review of the j back testing results and methodology. The review should focus on the j accuracy and frequency of back testing analysis generated by the MO. 113: Operations 113: Low Risk; Model Risk j3.6 3.6.1. While the and actualization process is most) manual, there are p y Reco mmendation3.6.1. , 1 Settlement 1 Actualization j processes in place to minimize errors and provide a quality control check 1 Rl: Where possible, consider whether certain data such as prices, volumes, R3: System R3: Low 1 on the data imported into Excel spreadsheets. The spreadsheets including 1 etc. can be retrieved and electronically integrated with the ETRM system. Risk 1 tracking of nominated (estimated) and actualized volumes, costs, jrevenues, and other actual data. Any discrepancies are investigated and Transaction j researched in a timely manner. Processing es are led but timely fashion; li Recommendation ff� 7 Settlement Settlement however,thereareanoiformal logs to track the discrepancy any and/or its p y Consider developing a formal settlement discrepancy tracking and Rl: C R3: System R3: Low Discrepancies resolution. Historically, there have been few settlement discrepancies with ;resolution to Th log3.w g, e log would provide a clear audit trail of the nature of the Risk ERCOT, and there has been only one settlement discrepancy with a )discrepancy, the means of resolution, and the timing of the final resolution, counterparty, Transaction Processing Risk ' 3.7 � ) 37.1 are erfo rine j Regular reconciliations performed by the BO for the realized P&L. Any Recommendation 3J.1 ) Accounting G/L Reconciliation ' ;discrepancies are investigated and researched in a timely sider developing a formal realized P&L discrepancy tracking and Rl: Consider R1: R1: Low - Realized P&L manner; however, there are no formal los to track the discrepancyand/or its The resolutionlog would provide a clear audit trail of the nature of the Transaction j resolution. ) discrepancy, the means of resolution, and the timing of the final resolution. Processing Risk j 3J ) 37.2 ) ed P&L. An Regular reconciliations p d by BO for the unrealized liz y n ? Recommendation 3J.2 Accounting ' G/L Reconciliation � y discrepancies are investigated and researched in a time) manner; Rl: Consider developing ping a formal realized P&L discrepancy tracking and R1: 113: Low - Unrealized P&L j however, there are no formal logs to track the discrepancy and/or its j resolution log. The log would provide a clear audit trail of the nature of the Transaction resolution. )discrepancy, the means of resolution, and the timing of the final resolution, Processing Risk This report is h,tended solely for the vrformati- a,d h,tem,l use ofDME, and sh,,Idnot be used or relied upmr by any other pe,,,, or mtity Recommendation 3.7. 3.7.3 i Recommendation menda ion .7.3. .� Accounting Links between There does not appear to be a formal link between executed hedges and Rl: Either ETRM system or via a manual process, document the R1: 111: Low j hedge and he item it is a hedge against. I nkeach transactions (hedge instrument) and the exposure it is intended Transaction exposure to hedge (hedged item), There should be adequate documentation and Processing j review of the link between the hedge and the hedged item, The Risk j requirement to document the link should be included in the EMO Procedures j and the detailed process to document the link in the desk procedures, 3. .J. Recommendation ,.... j 8 j 3.8.1 j3.8.1. j j Controls i Controls Processes j There is limited evidence that a robust control framework governs the j Rl: A framework should be developed, documented and utilized to help R1: 111: Medium j energy and risk management program, There is limited documentation, j control the energy and risk management activities, The controls should Operations outside the ERMP Policy or the EMO Procedures that details the control ) include the control objective, activity and type (i.e. detective, preventive), Risk 1 objectives, control activities, or frequency of review, 1 the frequency of control, the control owner, and detailed description of the control, 1 112; Periodically, an independent review of the following controls should beR2: 112: Low erformed: 1 P Operations Risk • Deal capture • Trade execution • Data sourcing and valuation methodologies • Risk limit compliance • Risk management program compliance • Credit limit compliance • Annual credit assessments • User roles and permissions and regular updates • ERMP Policy compliance • EMO Procedures compliance 1 3.9. 3.9.1 1 Recommendation 39.1. ) Credit 1 Credit Rating 1 Although there is an established credit rating methodology for calculating 1 Rl: Evaluate if the current methodology should be updated or if it is still a 111: Credit 111: Low 1 Methodology 1 counterparty credit ratings independently of the rating agencies, it has not 1 relevant methodology to use as DME adds new counterparties. Review the Risk 1 been reviewed since the approval of the ERMP and/or the EMO procedures, 1 EMO Procedures Manual to determine whether the methodology is 1 documented with enough detail. Additionally, should additional detail be 1 required, consider whether it would be more appropriate to document the jcredit rating methodology in a desk level procedure rather than in the EMO j Procedures, 3.9 3.9.2 It is unclear if the limit setting process has been once a limit h g p as 1 Credit 1 Credit Limit Setting j been approved, 1 Refer to Recommendation 39.3.113 1 3.9. 39.3 Recommendation jCredit Counterparty i Counterp intelligence reports from he�cred credit aged i th. e. S&P, evalua 39.3. y ) y y e g ) O should evaluatewhetherthe EMO Procedures Manual for credit Risk Credit 113: Low I Creditworthinessmarket in agencies i tions should be updated. The MO should perform the credit j Reviews Mood sand Fitch financial data obtained from 1QKs and 10 s, evaluation assessment for all active counter arties per fre uenc set b the l This report is mended solely for the vrformatimr a,d h,tem,l use ofDME, and ,h,,Idnot be used or relied upmr by airy other pe—, or e,'tity. 23 This report i, nrte rded solely for the vrformmimr and h,temal u,, ofDME, and sho,ld,,ot be used or relied upon by any other person or mtiry. 24 iiiiiiiiiii�jnmw M- qin� l however, Per the ERMP, credit limits should be reviewed semi-annually, Recommendation 1 ERMP. The assessment should include the following: jThrough discussion, it was unclear if this requirement to review Counterparty information counterparty creditworthiness is followed as documented in the ERMP. Historical payment history (average A/R days outstanding) • Description of customer relationship & business purpose • Credit rating history • Financial ratios & supporting factors for internal risk rating • News related to changes in business model, leadership, organization structure, M&A • Credit limit history • Recommended credit limit and approval from the Credit Manager The date the assessment was performed 1 Each counterparty assessment date should be monitored to ensure the 1 ERMP frequency requirement is met. i jR2; Document a more detailed desk procedures based on the Counterparty j Evaluations EMO Procedures Manual. i Refer to Recommendation 1.2.1.114 112: Credit R2: Low Risk jointlya 1 d BO work jo balances, reap No Recommends tions None 1 None Credit Collateral and The movements. of collateralrequirementsis performed Management, ) and reported on a regular basis. Credit Limit 1 Monitoring and 1 For ERCOT, there is a cash balancing account that has been setup to 1 Credit Reporting 1 minimize the number of cash in/out flows. In addition, broker accounts are 1 1 used to facilitate the variation margin and initial -maintenance margin with .... This report i, nrte rded solely for the vrformmimr and h,temal u,, ofDME, and sho,ld,,ot be used or relied upon by any other person or mtiry. 24 Detailed Technology Recommendations 4.1 ) 4.1.1 All deals are captured within the existing ETRM system; however, the ) Recommendation 4.1.1. Data/Risk ) Visibility of All system lacks many capabilities required to support DME's energy and risk 1 Inputs 1 Rieke / management program. Therefore, a significant number of processes are 1 Rl: As discussed above, DME should proceed with the process of i 1 Performed manually inspreadsheets. These include; identifying alternative ETRMs, selecting a fit -for -purpose system, and R3: SystemsCommodities 113: High • Price sourcing and validation implementing it to support the ongoing energy and risk management Risk • Transaction valuation 1 objectives of the utility. Key considerations should be given to the manual 1 Transacting • Position and credit exposure reporting j process being performed in order to automate as much of the processes as j Processing • Settlement and actualization j possible. 1 Risk • Risk analytics • Pre -trade analysis • Limit monitoring 4. 1 .. 4.1.2 Both physical and financial deals are captured in the DME's existing ETRM P ndation 4.1.1.R3 ) Referto Recommendation ) � Data/Risk ) Deal Capture system; however, it is a manually labor intensive process to upload deals 1 Inputs due to system limitations. Additionally, DME is limited in the types of transactions that can be executed due to an inability to accurately capture and value the transactions within the existing system. 1 4.`1.. JJ 1 4.1.3 1 Recommendation 1 1 Data Risk / ) Review and R1: 113: Medium 1 Inputs j Approval of Market The MO leverages a third -party price vendor and imports prices into an j Rl: Develop and clearly document a process for validating price and j Operational j Data Sourcing and Excel workbook to calculate the MtM on a daily basis. The FO also receives j volatility data entered into the ETRM system and used in valuation j Compliance j Valuation independent prices, which are used to perform valuations in the existing j methodologies, j Risk Methodologies ETRM. These prices are different from the third -party prices used by the i j MO. On a periodic basis, a reconciliation is performed between the MO and ) Market Risk FO valuations. However, the book of record remains with the MO. R2: Ensure there is appropriate segregation of duties between the FO and i MO as part of the data sourcing (price and volatility) and mark -to -market j R2: 112: Medium Options data is obtained from public sources on a periodic basis; however, process. The FO should input prices while the MO is responsible for Operational due to the system limitations and DME's inability to execute options, the validating the FO prices against independent pricing sources. Any material 1 Compliance data is not regularly needed or used, j price differences outside of pre -defined tolerances should be investigated j Risk 1 and resolved. i i Market Risk jRefer to Recommendation 3.4.3 R1 This report is nrte rded solely for the vrformati- and h,temal u,, ofDME, and sh,,Idnot be used or relied upmr by any other p,,,,, or mtiry. 25 1 4.2 j 4.2.1 DME has limited capabilities to generate automated position, credit, and jReporting j Planned Reporting risk reports. Therefore, report generation is typically manual and may 1 Refer to Recommendation 4.1.1.113 14.2.2 involve multiple Excel workbooks, use of m4....... 1 4.2 r Recommendation 4.2.2 t 1 ; 1 j Reporting 1 Confirmations 1 Confirmations are performed manually by a combination of the MO and BO, j Rl; Leveraging the ETRM system, ensure all transactions are appropriately ; j tagged with a status (actual, pending, confirmed) and develop a trade ii R10 113: Low For physical products, the transactions are submitted to ERCOT, reviewed j status report to allow the FO, MO, and BO the required visibility into ?Transaction Processing by both DME and the counterparty, and considered confirm when both j transacting activity. ) Risk parties validate the key terms. This prompts a manual review to compare what was reported to ERCOT with what was entered into the ETRM system. ) ) Operational Compliance For futures/financial deals, the transactions, as entered into the system of 1 Risk record, are compared to counterparty/broker statements. The deal is reviewed and any discrepancies identified are investigated and remedied 1 112; In the event, a discrepancy exists between DME and the counterparty, ) by the FO. 1 both Front and Middle Office should communicate to resolve the error. 1 Implement controls to prevent FO from editing traded. All edits should go 1 R2: 112: Low jthrough the MO. 1 Transaction i j Processing Refer to Recommendation 4.1.1.113 j Risk Operational Compliance Risk 4.3 limited the typestransactionsto an p ) Recommendation 4.3.1. Rico Controls 1 Transaction r thetransactions within he y accurately cap inability i j Completeness and existing system, j Rl; Develop a set of deal capture controls to ensure that transactions are 1 j Accuracy j entered timely, completely and accurately within the new ETRM system, 113: 113: Low On a periodic basis, manual reconciliations performed, 1 Transaction Processing Risk jOperational j Compliance Risk i jR2; Review transaction capture controls on an annual basis. The review of j the controls should be completed by a resource independent of the deal j capture, validation, and confirmation process. 1 R2: 112: Low Transaction jRefer to Recommendation 4.1.1.113 1 Processing Risk jOperational j Compliance Risk j 4.3 j 4.3.2 There is clear evidence of an end of day reportingprocess; however, it P mmendation4.3.2. j Recommendation f Controls ) End of Day does not appear that the end of day processing is documented. This ) Rl; Develop a list of required activities to be completed each day by the j 111 113: Medium Processing makes it difficult to understand whether the process is executed ) FO, MO and BO. These activities might include; )Operational consistently, each day, across the FO, MO, and BO, j Compliance FO; Risk ., Deal checkout for all new trades ., Review of risk limit compliance 1 Market Risk ., Review of credit limit compliance j Credit Risk This report is h,tended solely for the vrformatimr a,d h,tem,l use ofDME, and sh,,Idnot be used or relied upmr by any other pe—, or mtity 26 Recommendatn Review Miry deal checkout Review of valuation for open positions Review daily P&L ., Observance of authorized transaction limits and exposure ) boundaries MO: Trade validation Execute confirmations Perform independent price and volatility verification Perform end-of-day pricing & formula validation Perform end-of-day portfolio valuation Perform market and credit risk measurement BO: Track and process transactions Maintain customer information Exchange invoices with counterparties Perform P&L reconciliations Prepare customer billings This report is nrte rded solely for the vrformatimr and h,temal u,, ofDME, and shouldnot be used or relied upmr by any other peismr or e,,tity. 27 Appendix: Capability Maturity Model Detail Developing Board of Directors (or equivalent) has limited understanding Prevalent There is a defined organization structure in place where authority Leading There is a defined organization structure in place where of market and credit risk aspects of the business. and responsibility is delegated from the highest level of the authority and responsibility is formally delegated from the organization (BOD or their delegate) to the Risk Management highest level of the organization (BOD or their delegate) to the Risk authority and responsibility is loosely defined and is Committee and then to the Risk Control Department. This Risk Management Committee and then to the Risk Control likely informally delegated within the organization. delegation is moving towards increased formalization and Department. documentation. Definition of roles, responsibilities and authorities at the There is a Sr. Executive Level Risk Control Officer, who BOD and Risk Management Committee levels are only There is a formal Risk Control Officer, which may or may not be in typically chairs the RMC, who reports to the BOD as well as the vaguely articulated and documented. the C -suite, who typically chairs the RMC. This role has direct CEO. The CRO role has the ability to compel change within the reporting authority to the BOD as well as the CEO. organization. / There is a group that meets informally, but it does not necessarily have a formal structure, or a set schedule, or There is a Risk Management Committee, with a formal structure, The RMC is robust, effective, and forward-looking. meeting agenda of required topics. and there is normally a set schedule, and agenda of required topics. Formal roles and responsibilities are documented and The role of risk oversight is often taken on by the CFO or a Formal roles and responsibilities are documented and understood at understood for all levels in the risk management hierarchy. VP of Credit, the VP of Finance, or the Controller a "part- the RMC level and within the risk department, but definition of time role". roles, responsibilities and authorities at the BOD level may not be clearly articulated nor formally documented. Roles and responsibilities are neither formally documented nor well understood across the organization. 0 The Board of Directors or their delegate provides tacit Detailed Board of Director responsibilities have been formalized The Board of Directors, or their formal delegate, has the oversight of the enterprise's risk management activities. through the authorization of a risk management charter, which capability to understand the company's risk management details the role of the board and the risk management committee or objectives, risk tolerance, and overall risk management The Board of Directors or their delegate may receive their respective delegates. framework, determine appropriate BOD level reporting periodic risk management reports that are reviewed at requirements, and conduct ongoing formal communications periodic meetings. The Board of Directors or their delegate receives periodic risk with management. The Board of Directors (or their delegate) management reports that are reviewed at quarterly/monthly should be assigned authority to perform the following meetings. responsibilities: 1) Approval of Transacting Mandate; 2) Approval of Corporate Limit Structures; 3) Understanding and Advising on Risk Measurement Guidelines; 4) Understanding Authority Limits assigned to management; 5) Understanding Risk Management Policies; and 6) Understanding Credit Management Policies. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 28 This report i, h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtity 29 Developing The Risk Management Committee may exist, but there is Prevalent The Risk Management Committee delegates responsibility for Leading The Risk Management Committee ("RMC') is granted its still no effort to manage risk across the corporation. There developing risk policies and overseeing the management of risk to authority from a Risk Committee Charter and is responsible for is likely not a Risk Committee Charter. the Risk Control function. It reports informally to the Board of developing and approving risk policies and overseeing the Directors. There may or may not be a formal Risk Committee management of risk. It serves as the highest level of The RMC likely consists of a Chief Financial Officer and Charter. corporate risk management and directly reports to the Board senior management of the trading organization, and there is of Directors. The RMC composition will vary depending on the no formal reporting relationship to the Board of Directors. The RMC composition will vary depending on the size of the size of the company and the complexity of its transacting company and the complexity of its transacting activities. The RMC activities. The RMC includes, at a minimum, the Chief Risk Informal guidelines required for risk management control includes, at a minimum, the Chief Risk Officer ("CRO") (or, absent a Officer (CRO) (or, absent a CRO, the Independent Risk infrastructure, including implementation and monitoring of CRO, the Independent Risk Manager), Chief Financial Officer Manager), Chief Financial Officer (CFO), and senior compliance with the company's risk policy, are developed ("CFO"), and senior management of the trading organization. management of the trading organization. Other outside of the RMC. representatives, such as Legal, Credit and Internal Audit, may Formal guidelines required for an appropriate risk management also participate in meetings but usually do not vote as a Meetings are generally reactionary in nature, and frequently control infrastructure, including implementation and monitoring of member of the RMC. / focus on the market or what has happened instead of compliance with the company's risk policy, are developed by the managing risk. Meetings are informal. RMC. The RMC develops formal guidelines required for an appropriate risk management control infrastructure; this Quorum and voting procedures are only loosely defined, if The RMC meets periodically (usually monthly). There is normally a includes implementation and monitoring of compliance with the defined at all. set schedule and meeting agenda of required topics. company's risk policy, as well as providing guidance in strategic decisions involving risk, including delegation of Quorum and voting procedures are loosely defined in the committee authorities. charter. The RMC meets periodically (usually bi-weekly or monthly), as Meeting notes are taken and distributed, but there is not appropriate for the level of transacting activity. These necessarily a formal process. meetings have a formal structure, a set schedule, and a set meeting agenda of required topics. Quorum and voting procedures are defined in the committee charter. Minutes are recorded which include documentation of decisions, pending issues, and actions taken. 0 Front and back office functions are delineated, however, the Front, middle and back office functions are delineated, and the Segregation of duties between front, middle, and back office middle office function is performed by a variety of personnel middle office function is performed by independent personnel. personnel is documented in commodity transacting procedures Jfrom the front and back office with no true middle office manuals and is followed by the organization. function in place. The Front Office is responsible for initiating all commodity marketing and transacting activities. It is organizationally and The Front Office is responsible for initiating all commodity The Front Office is responsible for initiating all commodity functionally independent of the risk management and risk control marketing and transacting activities. It is organizationally and /marketing and transacting activities. There is usually only (i.e., Middle Office) and Back Office functions. functionally independent of the risk management and risk limited segregation of duties between the front-office and control (i.e., Middle Office) and Back Office functions. the risk management / risk control (i.e., Middle Office) and The Middle Office measures, monitors, controls and reports market Back Office functions with an inordinate amount of reliance risks associated with the organization's commodity transacting All risk oversight, validation, reconciliation and accounting on front-office personnel in these various areas. activities. The Middle Office is organizationally and functionally functions are independent of Front Office decision-making in independent from the Front and Back Office operations. both form (reporting lines) and substance (incentives). Front office personnel are responsible for managing the company's market risks and likely have a limited or basic Policies, processes, procedures, segregation and roles and Even though front, middle and back office functions are understanding of risk and reward, operations, planning and responsibilities are likely either formally documented, or at least segregated, they work together to provide the most risk management. well understood if not formally documented. comprehensive utilization of risk management activities to leverage the skills within each functional organization. This report i, h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtity 29 Policies, processes, procedures, segregation and roles and responsibilities are probably functioning in some manner, Policies, processes and procedures are formally documented. but may not be formally documented. 0 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 30 Risk Management Policies consider the following points: 1) Risk Management Policies consider the following points: 1) The Risk Management Policy ('RMP"), approved by the BOD, Transacting Philosophy; 2) Organizational/Governance Transacting Philosophy; 2) Organizational/Governance Structure; 3) exists either on its own or as part of a suite of documents Structure; 3) Segregation of Duties; 4) Risk Identification; Roles and Responsibilities; 4) Segregation of Duties; 5) Risk established by the company to provide effective risk oversight 5) Limit Setting Authorities. Identification; 6) Market Risk Measures; 7) Credit Risk Measures and monitoring. (possibly by reference to Credit Policy); 8) Limit Setting Authorities; To the extent that as Risk Management Policy exists, the 9) Limit Violation Repercussions; 10) Policy Revisions Process / The RMP provides entity level detailed guidance and controls content is limited to high level areas such as a description Timing; 11) Acknowledgment. and also serves to define corporate transacting and credit risk of permitted activities, high level limits, types of risk tolerances. In aggregate, these documents codify certain measured and high level organization charts. The detailed market and credit risk limits may exist, but are likely not Detailed market and credit risk limits are formally established within the RMP. approved control policies, provide evidence of entity level risk oversight, and seek to reduce the likelihood that transacting formally established within the RMP. activities will expose the company to risks that exceed defined A formal or informal process may be in place for all tolerances. This also reduces the likelihood that unforeseen employees who are involved in the transacting functions risks are incurred or left unmanaged. /(front-office) to sign a form annually, stating that they have / read, understand, and agree with the principles and Risk Management Policies consider the following points: 1) practices contained in the Policy. Middle and back-office Transacting Philosophy; 2) Organizational/Governance personnel are not required to acknowledge or sign the Structure; 3) Roles and Responsibilities; 4) Segregation of policy. Duties; 5) Risk Identification; 6) Market Risk Measures; 7) Credit Risk Measures (possibly by reference to Credit Policy); 0 oil 8) Limit Setting Authorities; 9) Limit Violation Repercussions; 10) Policy Revisions Process / Timing; 11) Acknowledgment. RMP and Procedures documentation is often maintained in a RMP and Procedures documentation is maintained in a centralized Leading practice is to have one comprehensive policy that centralized location but there may not be formal location with the formal responsibility for managing and periodically governs all commodities and instruments. All RMP and responsibility for managing and periodically updating the updating the documentation being performed as the independent Procedures documentation is retained in a centralized location documentation. Updates are performed in an informal risk group. and is accessible by the appropriate functions within the manner and are often reactive in nature to outside forces or organization. Responsibility for managing and periodically events / issues. Overrides of the risk management policies are nearly always updating the documentation has been formally assigned, discussed and approved by the Risk Management Committee. typically to an independent risk management function. 1/Only 1 PON significant modifications to the risk management 111 policies are discussed and approved by the Risk Upon occurrences of major issues, independent review of the policy Any overrides of the risk management policies (including those Management Committee. may be performed. Risk Management Policies and Procedures are relative to derivative classification) require proper documented and approved by the Risk Management Committee at authorization and are subsequently independently reviewed. There is seldom, if ever, independent review or assessment the time that they are initially developed. of the Policy for formal updates. Independent reviews of the Policy are performed on a regularly The Policies and Procedures are periodically reviewed and amended, scheduled periodic timeframe (3-5 years). but may not necessarily be approved on a set schedule by the RMC. H The RMP is formally approved as significant changes occur. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 30 This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 31 Developing The hedge program's objectives are not fully articulated. The objectives may be vague or unquantifiable. The organization's hedge strategy is only loosely defined. There are no analytics to support the hedge strategy and there is no clear link between the hedge decisions being made and the achievement of the programs objectives. Prevalent The hedge program has objectives that are clear and quantifiable; however, the hedge strategy development is largely focused on derivative instruments types and the how a particular instrument performs when prices rise or fall. There is no link between the hedge decisions being made and the achievement of the programs objectives. Leading The hedge program has objectives that are clear, quantifiable, and market compatible. The hedge strategy is developed by testing how different combinations of hedge decisions support (or don't) the achievement of the programs objectives. Through the simulation process, it can be determined whether the hedge strategy execution over time, and regardless of market conditions, deploys the types of risk mitigating actions that should be deployed to prevent the realization of intolerable outcomes as defined by the program's objectives. 4111110' Risk profiling, the qualitative and quantitative modelling of Risk profiling, the qualitative and quantitative modelling of the Risk profiling, the qualitative and quantitative modelling of the the company's natural risk and exposure to underlying company's natural risk and exposure to underlying market price and company's natural risk and exposure to underlying market market price and volumetric uncertainty, is performed volumetric uncertainty, is performed annually and is analyzed as price and volumetric uncertainty, is performed annually and is regularly (every few years) but does not set the foundation the foundation for establishing risk tolerances or hedge strategies analyzed as the foundation for establishing risk tolerances or for establishing risk tolerances or hedge strategies consistent with corporate objectives. hedge strategies consistent with corporate objectives. Hedge consistent with corporate objectives. simulation analysis is incorporated in order to evaluate the Hedge simulation analysis is incorporated in order to evaluate the performance of potential hedge program structures in the performance of potential hedge program structures in the context of context of improving the risk profile. These analyses are improving the risk profile. These analyses are typically performed typically performed through automated technology solutions through manually intensive processes. with the simulation analysis and output reviewed by the risk manager each year. Risk identification processes are fully integrated and highly technology enabled: Pro -active notification of key changes in the internal or external environment; risk checklists and repositories are defined (per risk category) and clearly I understood by all stakeholders. Feedback from Business Planning is incorporated. of Elements of risk appetite are defined in relevant risk policies Risk appetite is explicitly defined at an overall level for the Risk measures and limits are set at the enterprise level and are for some risk types in some business units. The risk enterprise. Risk measures and limits are linked to the goals of the allocated across business units. Risk appetite forms an appetite and tolerance vary from exposure to exposure. enterprise and the expectations of the Board and other integral part of overall strategy and is reviewed at regular There may be some understanding of the overall risk stakeholders. The enterprise has clearly documented risk measures intervals. Increased sophistication is present in the use of appetite at the management level, but this is not articulated and limits and standards for risk taking that are widely understood quantitative and qualitative criteria to assess performance /into specific tolerance levels which can be allocated or throughout the enterprise. Conformance with risk appetite is a key against appetite levels. Risk exposures are calculated communicated across the business units. Some risk measures and limits may or may not be documented. criterion in the assessment of new businesses and products. frequently and hierarchically within the organizational structure. Limits and standards are communicated across However, they are broad and have minimal impact on business units and their usage is widely embedded in day -to - decision making. day business activities. Risk appetite forms an integral component of the enterprise's strategic objectives and plans. An aggregate risk measure has been adopted and is used to guide decision-making. Risk appetite is formulated on an integrated risk basis using quantitative and qualitative methods that allow for timely This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 31 This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 32 Developing Prevalent Leading recalibration of limits as business conditions change. Risk limits are allocated to optimize risk-adjusted return hierarchically within the enterprise down to the product level where appropriate. There is clear understanding of the value drivers that influence risk appetite. !111 The RMC has responsibility for reviewing and approving Risk limits are either informally or loosely documented in Risk limits are documented in both corporate policy and procedure either the RMP or procedure manuals, which may be subject manuals. portfolio limit structures and trading authorities within the to change and communicated via ad hoc or informal parameters of the limits established by the Board. measures. The RMC has responsibility for reviewing and approving portfolio limit structures and trading authorities within the parameters of the Approvals of portfolio limits and trading authorities are clearly Risk limits have been set by the transacting organization, limits established by the Board. documented and readily available for review, when necessary. but they are disconnected from corporate risk tolerances. Some organizations use a two-tier limit structure that Approvals of portfolio limits and trading authorities are clearly differentiates between absolute and caution limits. Caution documented and readily available for review, when necessary. limits require discussions, tentative corrective actions, Some organizations use a two-tier limit structure that differentiates documentation of outstanding exposures and possibly an ad - between absolute and caution limits. Caution limits require hoc meeting of the RMC. Caution limits are considered to be discussions, tentative corrective actions, documentation of exposure monitoring tools that are utilized to determine outstanding exposures and possibly an ad-hoc meeting of the RMC. whether exposures should be held at current levels, increased Caution limits are considered to be exposure monitoring tools that or decreased. are utilized to determine whether exposures should be held at current levels, increased or decreased. Detailed limits are allocated to transacting activities in order to optimize the allocation of capital to transacting activities that Limits are periodically adjusted in order to respond to changes in yield the best risk/return relationship (high returns/low risk). market conditions. There is a one time acknowledgement of the Limits are actively adjusted in order to continuously respond to understanding of the limits by line personnel. changes in market conditions that yield the best risk adjusted returns. The RMC has primary responsibility for the market risk limit setting process, including disaggregating limits where appropriate by strategy or source of risk. The RMC also actively monitors the limits and ensures that they are communicated to line management. This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 32 This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 33 Developing Book structures are defined and implemented upon Prevalent Book structures are defined and implemented within the trading Leading Procedures exist and are documented that ensure all implementation of a trading and risk management system. and risk management system. The structure is granular enough for transactions are properly designated according to the "book While a book structure is designed and in place, this high level management reporting, accounting requirements and risk structure." The book structure reflects the current strategy structure is often not granular enough for detailed monitoring purposes. and operations of the business and is reviewed and updated on management reporting, accounting requirements and risk The book structure also may be inconsistent across business units a regularly scheduled basis. monitoring purposes. and products. Portfolios are established that enable management to monitor The book structure also tends to be inconsistent across Book structure definition and documentation is not detailed and is exposures related to different transacting activities and business units and products. Book structure definition and reviewed and updated on an "as -needed" basis when business attributes. This allows management to employ different limit documentation is not detailed and is reviewed and updated strategies or requirements change. structures that are consistent with management's appetite for only on an inconsistent or sporadic basis. Personnel assigned to verify and evaluate book structures have the respective transacting activity. For large organizations received no formal training and are qualified to do so. with multiple transacting functions, portfolio structures are Personnel assigned to evaluate and verify book structure consistently applied to ensure that exposures and related limits designation often do not have the proper knowledge and The book structure is defined and documented based on the roll up into the appropriate categories. training to perform such activities. purpose of the transaction (speculative, hedge, spot, forward, asset, arbitrage, etc.). The book structure is defined in the RMP and approved by the RMC and management reporting is performed in a consistent All books are defined and documented with the structure being re- manner with the entity's risk management policies. evaluated on a pre -defined scheduled basis to ensure that current books reflect the strategy and operations of the organization. Processes and procedures for developing and revising the book 0 4�1110111 structure are well defined and documented. All personnel responsible for deal execution and validation are aware and knowledgeable of the book structure format and definition. Risk authority is effectively delegated at the business unit Delegations of authority are fit for the current business model. Risk Delegations of authority are fit for the current business model level, but authorities are still are not fit for the current is effectively distributed at the business unit level, likely based on and risk is effectively distributed across the business so as to business model. Lack of data integrity frequently hinders "what is needed." Some desks/regions use delegations more enact overall business strategy. Authorities are understood. reporting current positions and exposures in relation to proactively than others as a way to properly allocate risk tolerance. There is strong documentation of authorities and in-depth authorities. Knowledge of authorities is rudimentary. There is basic documentation and understanding of authorities knowledge and understanding of authorities. An ability exists Desks focused on financial trading are more likely than amongst those responsible for managing within those authorities. for these authorities to be driven by periodic or ad hoc based physical desks to understand and use authorities as a Excessions of authority are generally planned for proactively, and market dynamics. management tool. Excessions of authority are still there may be an ad hoc process in place for lending delegation if/ managed reactively, but there are processes in place to do when needed. There is a specific documented method / process for so. transferring or "lending" authority from one group to another or from higher management levels as large "out of authority" transactions are executed, or as limits are approached. When authorities are breached without having been proactively anticipated, defined processes are in place to determine the cause and magnitude of the breach and specific steps are undertaken to address the situation. A formal process is in place that guides how DOA is measured/arrived at. This report is h,te,,ded solely for the mf—Mi- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 33 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 34 Developing Organization communicates with other companies and trade Prevalent Organization communicates with other companies and trade groups Leading Organization communicates with companies/groups across 111, groups in its own industry, using them to compare in its own industry, using them to compare performance. External industries and is willing to share ideas and capitalize on performance. benchmarking studies may be performed infrequently. improvement opportunities. "Centers of Competency" are used as a mechanism for the capture, storage and exchange of Interaction with functional experts in Front, Middle and Back Organization participates in and encourages personnel to attain knowledge. External benchmarking studies are performed Office is developing. Groups within the organization begin certification (s) from recognized industry groups. periodically. sharing 'lessons learned". Front, Middle and Back Office experts are consulted and valued in Front, Middle and Back Office experts are regularly consulted Knowledge sharing from other functions in the organization managing assets. Groups within the organization occasionally share and valued in managing assets. Groups within the organization is developing. 'lessons learned" (meetings, email, etc.). actively sharing 'lessons learned" (Leading Practice Networks, etc.). Knowledge from other functions are shared on key activities. Knowledge from other functions are shared on both routine and key activities. Roles and responsibilities are loosely defined or understood, Reporting hierarchies are formally defined and documented. Roles and responsibilities are formally documented. but are not formally defined and documented. Formal roles and responsibilities for the department and specific job Personnel are highly cross -trained with the requisite skills and Informal roles and responsibilities are included in specific functions are documented in risk policies, processes and procedures capabilities to assist when required. job descriptions and these are documented, but often and within job descriptions. change. Accountabilities within the group and outside of the group are Accountabilities within the group are understood but may not be well understood and formally articulated. Reporting hierarchies are understood and informally completely articulated. defined. Specific accountabilities within the group are only generally understood. 0 601 Specific executive(s) are assigned to lead the risk control Executive(s) with market and credit risk knowledge and authority Risk group is well funded and adequately resourced to group, but individuals are often not risk specialists. manage the risk control group. efficiently handle routine and non -routine responsibilities. Risk resources are minimally adequate to carry out routine Risk control group is properly funded and resourced to handle The CRO has the ability and budget to manage staffing and responsibilities, such as daily position and P&L reporting, routine and discretionary risk responsibilities. resources to accommodate changes to risk requirements and limit monitoring, etc. are regularly evaluated against external benchmarks. The risk Key personnel in the risk group are "risk professionals" who have organization is periodically subject to independent third -party Risk resources are often 'overwhelmed" by their front-office decided on risk control as a career. These personnel have reviews for effectiveness. counterparts and are unwilling or unable to challenge experience and knowledge to "stand up" to front-office personnel results or outcomes. when discrepancies or issues occur. Tools and methodologies are state of the art allowing risk control to provide highly valuable analysis services. Little time or attention is devoted to in-depth analysis or Tools and methodologies are well developed to make risk control value adding risk analysis work. able to provide more valuable services. Risk control is considered a key differentiator in the organization as to how the organization approaches and Tools and methodologies are being developed to make risk manages risk. control able to provide more valuable services. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 34 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 35 Developing A risk control department exists but is not functionally Prevalent The risk control (middle office) department reports to a member of Leading The risk control (middle office) department reports the Chief / separate or is overly influenced by the trading function. senior management such as the General Manager. Risk Officer (CRO) who in turn reports to the General Manager and Board of Directors. As the organization progresses, risk control (middle office) Risk Control is organizationally and functionally separate from the department falls within the finance or treasury department. trading function. It may report to a level below senior management and may l lack high level visibility in the organization. Planning develops requirements for products to solicit based Planning develops requirements for products to solicit based on Planning develops requirements for products to solicit based on / on forecasting and valuation methodologies formalized within the department. forecasting methodologies approved and formalized by the Risk Management Committee. forecasting and valuation methodologies approved and formalized by the Risk Management Committee (or subcommittee). The methodologies are well documented and Planning and Analysis group sends via email informal Planning and Analysis (or similar group) group sends email formally maintained. communication methods, Procurement an estimate of communicating procurement requirements to the appropriate procurement requirements. The estimate includes individuals. The estimate includes volumetric requirements, Planning and Analysis group utilizes analytic and online volumetric requirements, pricing forecasts, analysis or sometimes pricing forecasts, and analysis or related resources reporting functionality in the system of record to provide related resources available to ensure the optimal use of available to ensure the optimal procurement of resources. Procurement estimates volumetric requirements, pricing resources. forecasts, analysis or related resources available to ensure the 0 oil optimal use of resources. Master agreements tend to be negotiated by front-office or Prior to the execution of any transaction with a new counterparty, Prior to the execution of any transaction with a new senior management personnel. However, prior to the both Legal and Credit approval is required. Legal is responsible for counterparty, both Legal and Credit approval is required. execution of any transaction with a new counterparty, both reviewing and approving all master agreements and standard Legal is responsible for reviewing and approving all master Legal and Credit approval is required. Legal is responsible enabling contracts and maintains originals of all executed agreements and standard enabling contracts. Contracts for reviewing and approving all master agreements and agreements. Approvals (Legal, credit, Front Office, Finance) are Management or another relevant group is responsible for standard enabling contracts and maintains originals of all formally tracked in an approval form. archiving agreements. executed agreements. Approvals (Legal, Credit, Front Office, Accounting) are not formally tracked in an approval Approvals (Legal, Credit, Front Office, Accounting) are formally form. 0 0H tracked in an approval form. For transacting activities, products, commodities or For transacting activities, products, commodities or strategic For transacting activities, products, commodities or strategic strategic investments that are considered significantly investments that are considered significantly different from investments that are considered significantly different from different from historical activities, Front Office will often historical activities, Front Office will notify Middle and Back Office of historical activities, Front Office will notify Middle and Back communicate with Middle and Back Office regarding the the prospective transacting activities in order to consider the impact Office of the prospective transacting activities in order to impact of the prospective transacting activities. However, of the new activity. The Risk Management and Finance functions consider the impact of the new activity (see definitions in next profit is still the number one factor and will normally assist the RMC in understanding the impact of the new transacting section "Organization Structure'). The Risk Management and override any concerns of the middle or back office. The activity. RMC approval of new transacting activities or strategies is Finance functions assist the RMC in understanding the impact Risk Management and Finance functions may assist the required prior to deal execution. of the new transacting activity. The Board of Directors front office in understanding the impact of the new understands all significant strategic activities and inherent transacting activity. RMC notification (but not necessarily risks. RMC approval of new transacting activities or strategies approval) of significant new transacting activities or is required prior to deal execution. The treatment of standard strategies is required prior to deal execution. versus non-standard product types has been differentiated in these practices, where non-standard products are subject to more frequent review and approval. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 35 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 36 Developing Prevalent Leading Less than daily discussions are held by transacting Daily discussions are held by transacting personnel to recap the A formal daily tactical meeting is attended by transacting personnel to recap the transacting activities since the last transacting activities from the prior day, evaluate positions by personnel to formulate transacting strategies before the meeting, evaluate positions by trader and/or market trader and/or market location, discuss relevant operational and markets open. Both short and long-term market forecasts are location, discuss relevant operational and market events market events and discuss market views. These meetings are often discussed (including the output of forecasting models), and discuss market views. These meetings are often led by led by the head trader with front office senior management positions are reviewed, physical requirements (e.g., the head trader with front office senior management only regularly attending. scheduling, nominations, and transportation) are determined, attending periodically. and daily trading activities are proposed. New Tactical decisions and products are often presented and New tactical decisions and products are presented and explained once they have been discussed by the Risk Management The Front Office senior management is responsible to ensure fdiscussed by the Risk Management or Trading Committee in Committee that transacting activities proposed are consistent with the a separate forum. firm's strategic business and operational objectives and corporate risk tolerances. Counterparties that are near their credit limits are identified, as are any desks approaching their VaR limits. The daily tactical meeting is also used as an `` opportunity to initiate front office discussions on recommendations for new trading products, and to assess the existing infrastructure's capabilities to effectively manage product risks. Before any transactions are executed, traders verify Before any transactions are executed, traders verify counterparty Before any transactions are executed, traders verify counterparty status, transaction compliance with market status, transaction compliance with market and credit risk limits, counterparty status, transaction compliance with market and and credit risk limits, product authorization and enabling product authorization and enabling contract status. Traders have credit risk limits, product authorization and enabling contract contract status. Traders have access to reporting where access to reporting where credit and market risk exposures are status. Traders have access to reporting where credit and credit and market risk exposures are either monitored in an updated and compared to established risk limits daily, as are market risk exposures are updated and compared to after -the -fact and reactive manner or updated/compared to updated product approval lists. established risk limits in real time, as are updated product established risk limits periodically, as are updated product approval lists. approval lists. The system of record maintains the functionality for traders to enter "pending trades" in the system in order to evaluate the impact to The system of record maintains the functionality for traders to Not all Risk and Credit limits are documented in the appropriate Risk Management and Credit Policies. portfolio risk metrics and hedge program compliance prior to trade execution. enter "pending trades' in the system in order to evaluate the impact to portfolio risk metrics and hedge program compliance r prior to trade execution. Front office personnel are also able to Risk and Credit limits are established and documented in the perform stress -test scenarios on the portfolio valuations and appropriate Risk Management and Credit Policies. risk metrics by modifying key parameters such as current I forward market prices, volatilities, correlations, and load forecasts. Scenarios may be saved and re -run in future 0 automated reports. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 36 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 37 Developing Prevalent Leading Risk and Credit limits are established and documented in the appropriate Risk Management and Credit Policies. Front Office personnel often maintain personal spreadsheets Middle Office personnel are responsible for calculating and reporting Middle Office personnel are responsible for calculating and that track outstanding position. Middle Office personnel are positions from the trading system of record on a daily basis. Prior reporting positions from the trading system of record on a responsible for calculating and reporting positions from the to distribution of position reports, Middle Office personnel review daily basis (potentially available on real-time intra -day trading system of record on a ad-hoc or periodic basis positions for completeness and accuracy. basis). Prior to distribution of position reports, Middle Office (weekly or monthly). Deals may or may not be entered into personnel review positions for completeness and accuracy. the system in a timely and/or accurate manner. Ideally, Front Office personnel will not maintain personal spreadsheets that track outstanding position since the information Ideally, Front Office personnel will not maintain personal Prior to distribution of position reports, Middle Office in the system is reliable. Upon receiving position reports, Front spreadsheets that track outstanding position since the personnel review positions for reasonableness. Front Office Office will review Middle Office positions reports for completeness information in the system is reliable. Upon receiving position personnel often maintain personal spreadsheets that track and accuracy and notify the middle -office of any discrepancies. reports, Front Office will review Middle Office positions reports outstanding positions. Upon receiving position reports, for completeness and accuracy and notify the middle -office of Front Office discards them or does not acknowledge the Documentation of assumptions, processes and procedures any discrepancies. report as complete or accurate. associated with the calculation and reporting of positions is strong. MN For senior management monitoring purposes, positions may be There is limited documentation of assumptions, processes aggregated according to reasonable proxy commodity locations and procedures associated with the calculation and and time buckets, which are highly correlated. If positions are reporting of positions. aggregated, Middle Office documents its assumptions (e.g. correlations) for combining any positions. Technology enhancements allow many leading companies to manage and monitor real-time positions. Documentation of assumptions, processes and procedures associated with the calculation and reporting of positions is strong. /reported MTM and P&L amounts are calculated frequently and by an independent Middle Office function by MTM and P&L amounts are calculated daily and reported by an independent Middle Office function utilizing a system designated as MTM and P&L amounts are calculated at least daily (intra -day MTM reporting may be available) and reported by an relying on manual processes and excel spreadsheets for the official books and records for MTM calculations. Management independent Middle Office function utilizing a system MTM calculations. The MTM and/or P&L reports are and front-office personnel place reliance on the information designated as the official books and records for MTM available on a less than daily basis (weekly, bi-weekly, or generated from the system. The daily MTM and/or P&L reports are calculations. Management and front-office personnel place monthly). available to all interested parties, while senior management receive reliance on the information generated from the system. Daily weekly or monthly reports. MTM and P&L reports as well as explanations of daily changes Front Office personnel also maintain personal spreadsheets in MTM amounts are required to be presented in daily reporting that track MTM and P/L. Upon receiving MTM reports, Front Front Office personnel may also maintain personal spreadsheets to senior management. Office reviews the MTM or P&L reports generated by the that track MTM and P/L. Upon receiving MTM reports, Front Office middle office for reasonableness. reviews the MTM or P&L reports generated by the middle office for Ideally, Front Office personnel do not maintain personal This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 37 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 38 Developing Mark-to-market reporting is primarily manual in nature with limited basic query and "drill-down" ability. There is limited documentation in place for the mark-to- market or P&L reporting processes. Prevalent reasonableness. There is general acknowledgement that the P/L is reasonably accurate and differences can be documented and/or explained. Mark-to-market reporting is primarily automated with some manual adjustments utilized for formatting and reporting purposes. There is basic query and "drill-down" ability within the system of record. There is basic documentation in place for processes and procedures. Ill "'mIJJJ Leading spreadsheets that track P/L and MTM since the information in the system is reliable. Upon receiving reports, Front Office will review Middle Office the mid-office reports for completeness and accuracy and notify the middle-office of any discrepancies. Financial reporting personnel receive daily MTM and/or P&L reports published by Middle Office in order to better understand P&L changes recorded to financial records. Mark-to-market and P/L reporting is completely automated with pre-formatted reports being generated every night. There is robust query and "drill-down" ability within the system of record. There is robust documentation in place which is subject to regular reviews and updates. Front Office personnel sourcing market data with limited Front Office personnel participate with the Middle Office in sourcing Front Office personnel participate in sourcing market data with input from the Middle Office. This includes the sourcing of market data. This may include the sourcing of no regularly used the Middle Office. All transactions are valued within the not regularly used market data. market data sources. trading system of record. Middle Office is responsible for independent verification and Middle Office is responsible for independent verification and Middle Office is responsible for independent verification and approval of market data source but this does not often approval of market data sources which occurs prior to transacting. approval of market data sources. For long-term or high value occur prior to transacting and is more of a valuation transactions, Middle Office is responsible for independent function after the fact. There is periodic use of independent quantitative experts to assess verification and approval of market data s prior to transacting. the reasonableness of amounts reported. There is limited use of independent quantitative experts to Regularly, the organization employs quantitative experts to assess the reasonableness of amounts reported. y('K assess the reasonableness of amounts reported. There are 'lit periodic reviews of data sources by independent third parties. Market risk limit excessions are identified and self-reported Management uses a comprehensive set of reports that cover limits, Limit and violation reporting is an automated process where by front-office personnel. Due to lack of confidence in data margins, contracts, and infrastructure. Large risk reporting, and not the system generates violation reports that are automatically or tools/infrastructure, these limits and potential violations just large exposure reporting, is examined regularly. distributed to a pre-defined set of recipients. Based on the are not always taken seriously. Resolution decisions and severity of the violation, members of Risk Control, Front-Office steps are not consistently documented or tracked. Limit excesses may result in an ad-hoc RMC meeting being Management and/or Senior Management may receive called. The RMC is presented with the corrective action by the notification. Market risk limits are monitored on a regularly scheduled Front Office and votes on whether limits will be increased or the basis that is less than daily. Limit monitoring reports are corrective action to be taken, which result in exposures being Limit excesses (defined above a specific threshold) require that relatively informal and often only distributed on an weekly mitigated to within approved tolerances. The Independent Risk RMC meetings be called. The RMC is presented with the / or monthly basis. Manager participates in the RMC meetings and assists other corrective action by the Front Office and votes on whether members of the RMC in understanding the issues and related limits will be increased or corrective action enforced, which impacts of corrective actions. When exposures exceed the limit, result in exposures being mitigated to within approved transacting in that book is halted, except for transactions that tolerances. The Independent Risk Manager participates in the reduce the exposure, and that have been approved by the RMC. RMC meetings and assists other members of the RMC in understanding the issues and related impacts of corrective Market risk limits (VaR, P/L, Position, Options, etc.) are updated actions. based on prior day's closing data, and made available to traders When exposures exceed the limit, transacting in that book is each morning, prior to market openings. Prior to execution of halted, except for transactions that reduce the exposure, and transactions, traders verify transaction compliance with market risk that have been approved by the RMC. limits, and product authorization. Any transaction that would exceed pre-approved risk limits must be approved by a function Independent Risk Management (including credit) may call independent of the transacting function. In addition, if information impromptu RMC meetings if limits are being approached. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 38 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 39 Developing Prevalent systems support intra -day limit updates, traders are required to Leading Front Office will work through Independent Risk Management review this information, as it is updated, prior to execution of to highlight growing exposures due to market conditions or transactions. new strategies. The RMC considers the performance of the transacting activity and determines how exposures and limits should be managed. Corrective actions are subject to a RMC vote. A function independent of the transacting function reviews exposure and market risk limit (VaR, P/L, Position, Options, etc.) reports for traders (or marketers) on a real-time basis. Discrepancies and/or items beyond established limits are investigated and resolved. Before any transactions are executed, traders verify transaction compliance with market risk limits and product authorization status. Market risk limits are updated in real time through and are readily available to the traders, as are updated product approval lists. Integrated management reports are prepared for all risk There is consistent reporting of objectives, targets, performance The RMC has established the format and frequency of types across all business units at regular predefined and risks across the enterprise. There is an established distribution of risk reports to the RMC and appropriate line intervals such as monthly. Predefined reports are prepared understanding of the format and frequency of distribution of risk management that include: P/L Reports (Realized/Unrealized), for the Risk Management Committee (RMC) monthly and reports to the RMC and appropriate line management that include: Position Reports, Limit Utilization, Exception Reports, and the Board quarterly. There is an established understanding P/L Reports (Realized/Unrealized), Position Reports, Limit Credit Exposure Reports. The reports are prepared by an of the format and frequency of distribution of risk reports to Utilization, Exception Reports, and Credit Exposure Reports. The independent risk management function, or the middle office. the RMC and appropriate line management that include: P/L reports are prepared by an independent risk management function, These reports are distinctly tied to their specific strategies or Reports (Realized/Unrealized), Position Reports, Limit or the middle office. Actions to address issues included in the "value buckets." "What if" scenarios are reported. Utilization, Exception Reports, and Credit Exposure Reports. report are defined. The reports are prepared by an independent risk management function, or the middle office. Actions to address issues included in the report are not defined. 0 There is no consistent use of "At -Risk' measures such as "At -Risk' measures such as VaR are used to monitor all trading VaR and other "at -risk' measures are calculated by an VaR to monitor trading activity, and when they are used, it activity in an appropriate and effective manner. The frequency of independent middle office function on a daily basis and are is often done so inappropriately. The frequency of "at -risk' "at -risk' calculations may be performed on a weekly basis by front understood throughout the organization. The measures are calculations may be performed on an ad hoc or monthly or middle office personnel. The VaR methodology and purpose is periodically validated by an independent 3rd party (external basis by front office personnel. The VaR methodology and well understood throughout the organization. consultant, internal audit, external auditors). purpose is not necessarily well understood throughout the organization. No other "At -risk' methodologies are used. Transacting activities may also be monitored using at least one Valuation and market risk measurement methodologies utilize other "At -Risk' measure such as Gross -Margin -at -Risk ("GMaR"), the same market data in calculations. Companies that employ Often, one specific desk (or perhaps business unit) can Earnings -at -Risk ("EaR") or Cash Flow -at -Risk ("CFaR") measures. valuation and market risk measurement calculations across calculate specific "at -risk' measures (usually a financial disparate systems ensure such systems are integrated and desk) and this is used as a model for other desks. There is some documentation of the assumptions, methodologies, market data and other data are consistently applied. processes and procedures around the "at -risk' calculations; There is limited documentation of the assumptions, however, systems and processes across the organization may not Technology capabilities enable Middle Office to drill down to methodologies, processes and procedures around the "at- operate well enough to allow for the preparation of consistent, sub portfolios and other transaction attributes (e.g. VaR by risk' calculations. usable and well -understood at -risk reports on a company -wide commodity location, period, trader, strategy, etc.) in order to basis. better understand sources of VaR. Given the volume and This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 39 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 40 Developing Prevalent Leading complexity of transacting activities, VaR is subject to back testing procedures more frequently (e.g. daily, weekly or monthly). Cash flow -at -risk (CFaR) or similar metrics such as Gross Margin -at -Risk (GMaR) or Earnings -at -Risk (Ea R) are employed to measure potential risks associated with business and transacting activities that have an earnings expectation. These metrics may be used as a substitute for VaR-based metrics. Management reports should provide a clear definition of its risk pJJJ[11N metric, to accompany risk reports. Sensitivity analysis is sometimes used to consider events Sensitivity analysis is periodically used to consider events and Sensitivity analysis is required and is used to consider events and scenarios that are not considered in standard VaR scenarios that are not considered in standard VaR calculations. and scenarios that are not considered in standard VaR calculations. Stress testing is employed periodically (annual Periodic stress testing is conducted along political, economic, calculations. Extensive stress testing is conducted along or less) to determine whether the model(s) are still financial, forward market, operational, regulatory, counterparty and political, economic, financial, forward market, operational, performing as intended. up -mid -downstream event scenarios. regulatory, counterparty and up -mid -downstream event scenarios. Methodologies for measuring and reporting stress tests and Methodologies for measuring and reporting stress tests and scenario analysis are inconsistent across the organization scenario analysis related to scenarios and events that are consistent Methodologies for measuring and reporting stress tests and and various business units. concerns are periodically employed. scenario analysis related to scenarios and events that are consistent concerns are required and regularly employed. Additionally, other scenarios and events may be identified and !I+ considered on an ad-hoc basis for measurement and reporting purposes. measures, if utilized, are subject to back -testing "At -risk" measures are subject to back -testing procedures on a "At -risk" measures are subject to back -testing procedures on a res only on an annual basis. quarterly basis. monthly basis. Backtesting is used to calibrate the VaR process against recent events and Backtesting results are presented in management's L"At-risk" Value -at -Risk report to give an idea of the quality of the VaR calculation. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 40 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 41 Developing Actual data such as prices, volumes, etc. are manually Prevalent Where possible, actual data such as prices, volumes, etc. is Leading Actual data such as prices, volumes, etc. is transferred entered into spreadsheets or a system of record from transferred electronically directly into the system of record. There electronically directly into the system of record. The system various sources including spreadsheets and other temporary is also a means to accept or reject actualized commodity volumes has the capability to accept or reject actualized commodity data storage tools.(Ideally, this data should be downloaded and routes prior to accepting the electronic data into the volumes and routes prior to accepting the electronic data into from the reporting source and imported into a secure system. (Ideally, this data should be downloaded from the reporting the system. There is no manual intervention required to database in a daily batch process). Significant manual source and imported into a secure database in a daily batch actualize data. Processes are in place to ensure the consistent intervention may be required to actualize data. Ability to process). Significant manual intervention is not required to uploading of data, and any rejected data is investigated and track nominated (estimated) and actualized volumes exists. actualize data. Processes are in place to ensure the consistent researched immediately. Historical information is regularly uploading of data, and any rejected data is investigated and analyzed to identify consistent problems and/or opportunities researched in a timely manner. The system of record enables for improvement. The system of record enables tracking of tracking of nominated (estimated) and actualized volumes. nominated (estimated) and actualized volumes. Settlement discrepancies are handled in a timely fashion, in Settlement discrepancies are handled in a timely fashion, in Settlement discrepancies are handled in a timely fashion, in accordance with established guidelines or written accordance with established guidelines or written procedures. Any accordance with established guidelines or written procedures. Any discrepancy in settlement that is more discrepancy in settlement that is more than a routine situation is procedures. Any discrepancy in settlement that is more than a than a routine situation is brought to the attention of the brought to the attention of the Front Office and a routine situation is brought to the attention of the Front Office, Front Office and a Manager/Supervisor in the Back Manager/Supervisor in the Back Office. Further action is handled Middle Office and a Manager/Supervisor in the Back Office. Further action is handled and/or directed by Back and/or directed by Back Office management. All discrepancies are Office. Further action is handled and/or directed by Back Office management. Discrepancy and resolution is entered into a formal log that provides a clear audit trail of the Office management. Discrepancies are updated in the system documented. nature of the discrepancy, means of resolution, and final resolution. of record so that information is consistent across all areas of the system. All discrepancies are entered into a formal log, which is monitored regularly, that provides a clear audit trail of the nature of the discrepancy, means of resolution, and final resolution. The discrepancy log is reviewed by supervisory H 0 personnel (e.g., Risk Control Manager) on a periodic basis so that trends can be detected and acted upon. Often the general ledger cannot be completely reconciled f In order to effectively post realized P&L as well as A/R and A/P The general ledger is fully integrated with the trading and risk with the trading and risk management sub ledger. balances, companies employ manually intensive processes to management sub ledger. Regular review is conducted to Realized results of physical trading are not granular for manage granular settlement details. It is very important that the ensure the general ledger and the sub ledger remain O some products or trading groups (actual shipping results Back Office and Controllers' group are very careful to document the consistent. cannot be linked individual trades). Companies employ audit trail associated with settlements. manually intensive processes to assure reasonableness of results. Large gaps are researched. Reconciliation is a constant process. The audit trail is frequently unclear or non-existent. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 41 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 42 Developing If net unrealized (MTM) amounts are manually posted to the Prevalent If net unrealized (MTM) amounts are manually posted to the Leading The general ledger is fully integrated with the trading and risk general ledger, the results and/or processes are frequently general ledger, the Controllers Group (or similar Back Office management sub ledger. Regular review is conducted to not understood by the Back Office accounting function. A accounting function), using a manual process or systematic ensure the general ledger and the sub ledger remain function of the Middle or Front Office performs a manual reporting tools, performs a detailed reconciliation of amounts per consistent. ' reconciliation of amounts per the trading and risk the trading and risk management sub ledger (e.g. often just plain management sub ledger and other manual adjustments to vanilla MTM calculations) and other manual adjustments to source - source -system calculations (e.g. off -system valuations, system calculations (e.g. off -system valuations, valuation valuation adjustments, etc.). adjustments, etc.). The linkage of the derivative hedge and the hedged item is The linkage of the derivative hedge and the hedged item is formally The linkage of the derivative hedge and the hedged item is documented, but is applied manually for reporting documented and is maintained within the system of record. formally documented and is maintained within the system of purposes. record. Changes to the link require management approval. Any changes to this link are properly approved by management. This link provides an adequate audit trail, including time/ date stamps to prove out contemporaneous documentation. Control activities, disclosures and operations policies and Internal controls are standardized and periodic testing are Formal controls and enforcement measures are integrated procedures are either informally or formally documented. integrated through operations to ensure compliance with policies within operations, standardized across the enterprise and and procedures. clearly understood and respected by all employees. Internal /Improvement opportunities for internal controls are controls are automated and integrated across operations. documented and communicated as they come up or standardized and periodic testing are integrated through Formal processes are in place across the organization to ensure follow-up on internal controls inconsistencies and issues identified. Feedback and compliance reports are collected at the / operations to ensure compliance with policies and corporate level. Processes for monitoring regulatory changes procedures. Issues identified during periodic internal audits Accountability for implementation of improvement opportunities is and other imperative factors are defined and assigned. are maintained within business units or functions. assigned and monitoring processes are applied. Formal reviews of internal controls are performed on a regular Formal processes are in place across the organization to basis, with implementation accountability assigned ensure follow-up on internal controls inconsistencies and� automatically (internal audit function). issues identified. 0 C,y This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 42 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 43 Developing Counterparty credit ratings rely heavily on third -party Prevalent The internal credit scoring / rating methodology incorporates an Leading An internal credit scoring / rating methodology is formalized, agency ratings such as Standard & Poor's, Moody's, and informal quantitative analysis. and it is reviewed for appropriateness on an infrequent basis. Fitch. Alternatives such as Dun & Bradstreet may be used It incorporates financial analysis, industry outlook & peer for those without agency ratings. An internal ratings A limited credit -scoring methodology with a small number of group comparison, and subjective analysis. Analytical tools methodology may be in place. Adjustments to agency scorecards and limited counterparty segmentation may be used for may provide additional support/basis for assigned ratings. ratings are informal and inconsistent. certain counterparties. The scorecards may have been validated prior to implementation. Multiple scorecards have been implemented for use with A simple, generic (i.e., not focused on a particular industry unique counterparty segments for which credit scoring is or counterparty type) credit -scoring tool may be in place. The quantitative credit scoring evaluation includes basic financial appropriate. The scorecards were validated prior to statement ratio (e.g., profitability, leverage, liquidity) and trend implementation and may be periodically re -validated. /Creditworthiness assessments are limited to identification of (e.g., 3 -year growth of 5%) analysis. Peer analysis (i.e., basic facts, for example industry, years in business, key comparisons to ratios and trends of similar companies) may be The quantitative evaluation includes detailed financial products and/or business units, etc. performed. statement ratio analysis. Trend analysis is measured via compound annual growth rate (CAGR). One or more market- based indicators (e.g., equity default models, bond spreads) may be included. The qualitative assessment includes bank and trade references, information or insights that may be provided by trading/marketing/sales, third -party credit information (e.g., Moody's, S&P, Fitch), changes in transacting and/or business strategies, shifts in key management personnel, changes in risk management policies and controls, off -balance -sheet or contingent liabilities, credit triggers, environmental risks, material litigation, and competitive analysis. Detailed, formal root -cause analysis is performed to identify the drivers and understand and evaluate the likelihood of change and/or recurrence. Limit -setting practices may be informal or inconsistent. The formal limit -setting methodology incorporates a matrix of limit The formal limit -setting methodology incorporates a matrix of Where a formal matrix or methodology exists, the same thresholds based on counterparty creditworthiness (e.g., as limit thresholds based on counterparty creditworthiness (e.g., limit for each counterparty may be set at an identical measured by risk rating) and the business requirements associated as measured by risk rating), business requirements associated amount for every counterparty in a specific tier (e.g., with a particular counterparty (i.e., how much credit is required to with a particular counterparty (i.e., how much credit is determined by a risk rating) support ordinary business). The matrix provides maximum required to support ordinary business), consideration of the unsecured limits for each tier. The limit may be determined by a relative scale of the counterparty to appropriately size the Limits are established for all counterparties. Documentation simple formula (e.g., percent of tangible net worth, fixed pre- limit, the strength of the contract, and the tenor. The limit is of approvals may be limited to the largest and/or riskiest defined ranges). determined by a formula that may incorporate multiple counterparties. components (e.g., cash flow, capitalization, etc.) and which The formula may not have been validated prior to implementation varies by tier. and is not regularly reviewed for appropriateness. The methodology formula was validated prior to Limits are established for all counterparties. Formal documentation implementation and may be regularly reviewed for of approvals is in place for all counterparties, but may be appropriateness. inconsistent across business units. Formally documented and approved limits are established for all counterparties. Documentation is standardized with flexibility to incorporate business unit -specific customizations. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 43 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 44 Developing Most counterparties are reviewed on an ad-hoc basis as Prevalent Policy requires that counterparties are reviewed annually. Large Leading Policy requires that counterparties are reviewed at least triggered by a request for a limit increase or annually. and/or high-risk counterparties may be reviewed more frequently. annually, based on updated financial information. The top Those with agency ratings may be reviewed less frequently. counterparties by exposure and the more volatile Credit files include documented credit assessments and limit counterparties are reviewed more frequently or at least Primary credit files are typically physical, and include approvals. They may also include news, internal and/or agency quarterly (upon release of quarterly financial statement documented credit assessments, limit approvals, and ratings/changes, contracts, collateral issues, etc. Files may be information) or as warranted by material events, news, etc. limited to no supporting information. Documentation may physical and electronic, but there may not be a centralized be incomplete or inconsistent and the ability of a third -party repository for storing electronic credit file data. Credit files include documented credit assessments, limit to understand the risk assessment and credit limit may vary approvals, news, internal and/or agency ratings/changes, accordingly. Documentation may be incomplete or inconsistent and the ability of contracts, collateral issues, etc. Files provided may be either a third -party to understand the risk assessment and credit limit physical or electronic but are primarily electronic (up-to-date, may vary accordingly. centralized repository), and are robust enough for any outside 0 CII party to quickly understand the counterparty's risk assessment and credit limit. There may not be a specific group in place to analyze There may not be a specific group in place to analyze collateral Collateral Management analyzes collateral balances and collateral balances and collateral requirements, ineligible balances and collateral requirements, ineligible collateral, and collateral requirements, ineligible collateral, and collateral collateral, and collateral movements. Monitoring of collateral movements. Monitoring of collateral requirements is movements in a regular manner, typically daily and closely collateral is performed on an infrequent or reactive basis by performed on a regular basis by either the credit department, or communicates with Credit and Treasury. The system calculates either the credit department, or front-office personnel. front-office personnel. margin daily. There is an established process to handle defaults quickly. Collateral may exchange MTM reports with Credit limits are monitored on a reactive basis or daily basis Credit limit availability is updated based on prior -day closing data, counterparties on a regular basis to reduce MTM disputes when based on the prior day's closing data. and made available to traders/sales & marketing each morning, margin payments are demanded. Credit limit availability is prior to the start of business. updated and accessible on a real-time basis or prior to market Limit violations tend to be caught during the nightly openings. transaction processing within the system. Any transaction that would exceed established limits must be pre- Trading/marketing/sales (and management) are informed of approved by a function independent of the transacting function. There is continuous communication between the credit any violations the next day. department and/or middle office and the Controls are in place to provide after -the -fact reporting to identify trading/marketing/sales function to ensure that all parties are There are limited to no controls to identify the entry of the entry of transactions that violate established limits. aware when credit limits are being approached. Prior to transactions that violate established limits. Monitoring on execution, trading/marketing/sales verify counterparty status, an intra -day basis is not conducted due to system transaction compliance with established limits, and product constraints at most transacting organizations. Transactions authorization. that would exceed established limits are not regularly pre - approved. Controls are in place to provide real-time automated notifications to the credit department and/or after -the -fact reporting of transactions that violate established limits. Trading/marketing/sales is required to review intra -day availability information to verify counterparty status, transaction compliance with established limits, and product authorization prior to execution of transactions. Any jff�r{.r transaction that would exceed established limits must be pre - approved by a function independent of the transacting function. This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 44 / / Developing In order to address the company's transacting profile, multiple transaction capture systems are used to handle different commodities, geographic regions, or risk types (physical/financial). Additionally, a significant number of transactions may still be stored or managed in spreadsheets. There is little to no consolidated exposure reporting and it is still a complicated manual exercise. ® Prevalent In order to address the company's transacting profile, multiple transaction capture systems may still be used to handle different commodities, geographic regions, or risk types. Transacting system functionality addresses all trade types and no transactions are wholly managed in spreadsheets. Consolidated reporting is available through interfaces to external reporting systems. These interfaces happen after daily batch processing and create an additional lag in receiving consolidated exposure/position reporting. 41111 Leading Transactions for all commodities, regions and risk types are captured in the same system. Consolidated risk exposure reporting is automated and timely. Additionally since all trades are in the same system, then reports that allow drilling into more detailed data and into specific trade details are available. Deals continue to be captured in spreadsheets. A All deals are captured in a consolidated risk system before the end All deals (financial, physical, options, etc.) are captured in one consolidated risk system is introduced where financial deals of the business day. Any errors in deal entry are corrected the consolidated risk system immediately upon transaction are captured but physical deal capture tends to be sporadic. following day. Deal sign -off might or might not take place. execution. Deal entry is performed according to consistent, There is no assurance that physical deals are captured documented methodologies across all trade books. Deal sign - accurately. Deals are regularly captured the following day off takes place to assure that deals are complete and accurate or later. before the end of day process begins. Independent middle - office personnel monitor for compliance exceptions which are captured in the system. Violations carry legitimate consequences. � y ! 001 Market data sourcing methodologies are inconsistent across Market data sourcing methodologies are consistent across the Independent Risk Management develops market data sourcing the different groups and business units performing this different groups and business units performing this activity. methodologies and market risk measurement (valuation) activity. Methodologies are often developed in response to Methodologies are developed to consistently source, aggregate and methodologies and presents them to the RMC for approval. All specific needs with little or no integration or validate data. There is a basic level of integration and methodologies are thoroughly documented and are considered r communication. communication between business units and various functions. in periodic compliance reviews that seek to ensure that Independent risk management personnel have primary methodologies are consistently applied. Front office personnel usually have significant responsibility responsibility for sourcing and validating data while front office for sourcing data but there may be limited independent risk personnel may provide additional insight upon request. Market risk Broker quotes and trade publications provide a valuable source management validation. measurement (valuation) methodologies are developed and for obtaining market data for many commodity delivery validated by independent middle -office personnel. locations. Front Office personnel may provide input on Market risk measurement (valuation) methodologies are sourcing market data from brokers and other sources, but such basic in nature. Methodologies are neither documented nor Methodologies have basic documentation and are understood prices are be subject to validation by an independent function. well understood outside of the specific personnel performing outside of the specific personnel performing the activity. the activity. Volatilities and correlations should be updated and validated on Volatilities and correlations are calculated "in-house" using internal a frequent basis using a consistent, approved methodology. A generic volatility and correlation model is used to develop or "off-the-shelf' option valuation models. These models are Volatilities may be sourced from OTC brokers. The broker may J option prices. This model tends to be static across locations maintained and updated by front-office personnel. quote an explicit volatility, but usually an "At -the -money" and time. ("ATM') option price is quoted. If an ATM price is quoted, management uses volatility development methodologies which There is limited to no documentation of any processes and consider a hybrid of historical volatilities and other available procedures and only sporadic review of any models used. market data to solve for volatility. Broker -quoted volatilities and ATM option prices are representative of implied volatilities. Models are only tested on an ad hoc or periodic basis as middle -office personnel may not have the appropriate In some cases, implied correlations can be inferred from This report i, h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 45 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 46 Developing knowledge and skills to perform a thorough independent review. Documentation of methodologies, processes, procedures and assumptions tends to be very basic. Prevalent Leading broker data, but in most cases, correlations will be computed as part of the volatility calculation. A procedure exists to pull planned reports from individual Technology capabilities provide exception reporting that highlights Reports are produced with little to no user interaction using a systems, but data can not be pulled from multiple systems changes in market data from day-to-day. Middle Office has the procedure manager or automated process. This automatic at once. ability to filter significant changes in market data. Filters are process is able to distribute the report to pre-defined flexible and may be changed based on Middle Office's professional distribution lists at a specified time interval. Physical reports are manually generated by aggregation of judgment and understanding of market conditions and positions multiple spreadsheets or lines of data. outstanding. Many commonly requested and critical data elements of pre- summarized and pre-aggregated in a reporting database that Reports may be inaccurate due to human errors. The transacting system is able to aggregate data from multiple ensures timely reporting. sources as appropriate. The reports can be independently verified Reports are often limited because necessary data attributes within each system to ensure accuracy. The data model and data capture processes are rich enough to are not saved in the data model, which prevents reporting ensure that reports can be generated along the dimensions on the desired dimensions Reports are consolidated across multiple systems and create a needed by the business. single reporting repository. Limited manual intervention is needed Reports may not be available on a timely basis depending for consolidated reporting The generation, production, and display of these reports are on approach used to aggregate data across multiple governed by IT security policy. systems. Reports may are available on a timely basis depending on approach used to aggregate data across multiple systems. � y ! a lly F Transaction confirmations are sent/received by a function Transaction confirmations are sent/received by a function Transaction confirmations are sent/received by a function independent of the transacting function for all deals within independent of the transacting function for all deals within 24 independent of the transacting function for all deals on a daily 48 or 72 hours. Status of the deals in the confirmations hours. The status of deals in the confirmation process is actively basis. The status of deals in the confirmation process is process is updated in spreadsheets or periodically in the tracked in the system of record. Reports detailing the status of actively tracked in the system of record. Reports detailing the system of record. Reports detailing the status of confirmations are generated and reviewed on a weekly basis. status of confirmations are generated and reviewed on a daily confirmations are generated and reviewed regularly or on a basis. periodic basis. 0 This report is h,te,,ded solely for the mf—i- and h,temal use ofDME, and sh,,Idnot be used or relied up,,, by any other p,,,,, or mtiry. 46 This report is h,te,,ded solely for the mformwi- and mt—1 use ofDME, and sh,,Idnot be used or relied upm, by any other p,,,,, or mtiry. 47 Developing Several system tools like uneditable transaction capture Prevalent System tools like uneditable transaction capture dates and Leading System tools like uneditable trade capture dates, trader dates, trader checkout process and transaction confirmations are available and utilized in end of day processing checkout and trade confirmations are available and / confirmations are available, but may not be consistently controls so that end of day position reporting ordinarily includes all consistently applied so the end of day position reporting applied or enforced, so end of day processes may not trades. ordinarily includes all trades. always include all transactions. Interfaces between systems may be manual or require manual Interfaces between systems are automated as are the interface Interfaces between systems may be manual or require reconciliations that occasionally leads to downstream systems completeness controls so that the data synchronization manual reconciliations that occasionally leads to having incomplete data. between systems is high. downstream systems having incomplete data ®1!"1a A standardized End Of Day process exists. This process A standardized End Of Day process exists, driven by automation of A standardized End Of Day process exists. This process describes sequence of events taken to ensure that all deals reports. This process describes sequence of events taken to ensure describes sequence of events taken to ensure that all deals are are captured, that all market prices have been entered, that all deals are captured, that all market prices have been captured, that all market prices have been entered, scheduling scheduling for the day has been completed and that the entered, scheduling for the day has been completed and that the for the day has been completed and that the transacting transacting system is ready for end of day processing to transacting system is ready for end of day processing to proceed. system is ready for end of day processing to proceed. proceed. However, limitations in the process, or in the Ordinarily the prescribed sequence of steps is executed correctly Additionally, a solid mixture of automated and manual controls W execution of the process, yield a state where many and critical reports like the Margining report, Position Report, Mark exist to ensure that all prescribed steps are executed. These challenges still exist in the end of day processes. Critical to Market report and Risk Exposure Reports are accurate. However, controls ensure that critical daily reports like the Margining Wreports like the Margining report, Position Report, Mark to there are occasions where key tasks are not executed correctly and Report, Position Report, Mark to Market report and Risk Market report and Risk Exposure Reports are often this leads to inaccuracy and the need to re -execute the process. Exposure Reports are accurate, and exceptions to that are very inaccurate and need to be re -executed because data was rare. not complete before the end of day process began or possibly because data was being edited during execution. 0 ' This report is h,te,,ded solely for the mformwi- and mt—1 use ofDME, and sh,,Idnot be used or relied upm, by any other p,,,,, or mtiry. 47 Deloittef, City of Denton - Denton Municipal Electric (""DME") .SII a sseSSIII E: "I� Ct( M„� �� �� ��wIIG!I"��� ��I'I�,'! V'I�� 1��II�4��G`I°11G!I'I�`: �I C4��C�'llll ��I'G��,'! ,�I Ct�;;iCt�,G�G,'! k"��� � eI",IC1111t,l��l"�. December 11 - 12, 2017 This presentation is intended solely for the information and internal use of the City of Denton and is not intended to be and should not be used by any other person or entity. No other person or entity is entitled to rely, in any manner, or for any purpose, on this presentation. City of Denton - DME Energy Management Organization Risk Assessment & FY17 Benchmark Analysis We are pleased to provide the attached presentation with respect to the risk assessment and FY 17 benchmark analysis services performed in accordance with our statement of work dated October 10, 2017 by Deloitte & Touche LLP, as requested by the City of Denton ("the Owner"). Our services included advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Owner. Our services and deliverables are solely for the Owner's benefit, and are not intended to be relied upon by any person or entity other than the Owner. The Owner should not disclose the services or deliverables, or refer to the services or deliverables, except as specifically set forth in the statement of work. Our services were performed in accordance with the Statement on Standards for Consulting Services issued by the American Institute of Certified Public Accountants (AICPA) and did not constitute an engagement to provide audit, compilation, review, or attestation services as described in the pronouncements on professional standards issued by the AICPA, the Public Company Accounting Oversight Board, or other regulatory body and, therefore, we did not express an opinion or any other form of assurance with respect to our services. We did not provide any legal advice regarding our services, nor did we provide any assurance regarding the outcome of any future audit or regulatory examination or other regulatory action. The responsibility for all legal issues with respect to these matters, such as reviewing all deliverable[s] and work product[s] for any legal implications to the Owner, will be the Owner's. It is further understood that management is responsible for, among other things, identifying and ensuring compliance with laws and regulations applicable to the Owner's activities. We look forward to continuing to work with you on this engagement. Please do not hesitate to contact Steve Engler directly at 973-602-5206 or senglel u l Ki r Ki . if you need additional information or clarification about any aspect of this presentation. This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Table of Contents • Objectives 4 • Risks, Uncertainty, and Capabilities 6- 8 • DME Risk Assessment 10-14 - Scope 10 -The Capability Maturity Model 11 -The results 12 - Recommendations 13 - Summary 14 • Benchmark and Alternatives 16- 20 • Recommended Next Steps 22 This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. What we were asked to do • Identify risks that existed before the creation of the EMO and what risks may exist for DME since go -live • Based on the risks identified, assess DME's risk management program and make recommendations for improvement • Analyze different approaches for establishing the FY17 benchmark and make recommendations for how to proceed This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Risk Identification What is Risk? -Possibility of suffering adverse outcomes such as higher rates® lower revenues® or higher costs Uncertainty refers to unknown events where the probability of occurrence is difficult to quantify (i.e. availability of renewable supply) -Risk and Uncertainty both talk about expectations in future, but risk can be mitigated; on the other hand, uncertainty will always exist -Managing a risk does not necessarily mean foregoing an opportunity This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. As companies move left on the value chain, the shift in strategy requires different capabilities yaI:ialI°oIIIIIIuty R eq us li ire "11-f e onUts • Oversight • Reporting • Policy & Procedures • Infrastructure • People ralkeir Asset firaclleir This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Key Risk Areas Understanding Key Risk Areal Market Risk Liquidity Risk Yes DME DME Commodity Price Risk No DME Congestion Risk Yes Third Party DME Basis Risk Yes Third Party DME Load Serving / Following Risk Yes Third Party DME Credit Risk Financial Counterparty Default Risk Yes DME DME Physical Delivery Risk Yes Third Party DME Operations Risk Systems Risk Yes Third Party DME Transaction Processing Risk Yes Third Party DME Compliance Risk Yes Third Party DME Regulatory Compliance Risk Yes DME DME Model Risk Yes Third Party DME Asset/ Performance Risk Yes DME DME Renewable Variability Risk No DME Gibbons Creek Autonomy Risk No This presentation is intended solely for the information and internal use of the City of Denton and should not be used or relied upon by any other person or entity. DME Risk Assessment Risk assessment objectives and scope Objectives Deloitte & Touche LLP ("D&T") was engaged to: ■ Understand Denton Municipal Electric's ("DME") existing energy and risk management program ■ Collect and evaluate data, develop findings, and make recommendations to help DME understand areas for development given the utility's energy operations and planned renewable portfolio; and ■ Prepare an executive summary of observations and recommendations for DME's consideration. Scope & Approach This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. io What is the Capability Maturity Model (""CMM") and how is it used? Governance *Ad hoc *Limited linkage between VIII risk and trading *Oversight is decentralized Process *Trading requirements and activities are undefined *Process are informal or not defined People *Depends primarily on individual heroics, capabilities, and verbal wisdom Technology *Reporting and risk measurement is manual, D spreadsheet based and error -prone *Common framework and •Integrated risk management governance activities across trading time *Consistent risk oversight horizons (forward to real meetings and reporting time) *Process, trading controls and *Hedge strategy and risk risk reporting is defined and tolerances are continually documented assessed *Risk metrics are defined and *Risk mitigation plans and appropriate escalation procedures exist *Regular communication and *Risk management training reporting with key stakeholders is regularly updated *Redundant and trained *Appropriate balance of resources from Front to resources Back office *Automation is integrated to *Systemic monitoring, processes and reports measuring, and reporting for risk metrics This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. ii Summary of risk assessment results tyly49iy44yl,' ryiii�,�1�}, uullllluuuuliuu�ulllllluiluuulululdlm Recommendations Select Risks -2. Governance High Priority: 12 {��I� Medium Priority: 10 • Operational Compliance Risk Market Risk Regulatory Compliance Current State Recommend' d State Low Priority: 2 Process ............ ;................................................ iquidity Risk High Priority: 2 Commodity Price Risk �! Medium Priority: 8 Model/System Risk Physical Delivery Risk Low Priority: 15 Transaction Processing al Com ance Risk Operation PBia High Priority: 1 People IIII 1 Medium Priority: 2 Operations Compliance Risk Low Priority: 0 Technology High Priority: 1 Systems Risk ® 0Medium Priority: 3 Transacting Processing Risk Operational Compliance Risk Market Risk ® Low Priority: 4 Credit Risk High, medium and low priorities were determined based on D&T's understanding of common and leading industry practices and our view of the risk mitigation benefits of implementing the recommendation. This presentation is intended solely for the information and internal use of the City of Denton and should not be used or relied upon by any other person or entity. i. Select recommendations The recommendations below represent those identified as high priority Governance Process �Illl Review risk policy and governance hierarchy • Reconsider risk metrics and measurement •Update governance documentation • methodologies • Determine appropriate oversight meeting prepare a daily portfolio level risk report frequency • Establish a single risk management committee (-RMC") • Conduct regularly scheduled RMC meetings • Update Appendix A of the ERMP (limits) • Update Appendix E of the ERMP (approved products • Design and document a financial hedge strategy • Quantify DME's risk profile annually • Define risk limits linked to objectives • Reconcile DOA memorandum with the ERMP Technology • Proceed with identifying and implementing a ® new ETRM to meet DME's energy and risk ® management requirements People Assess adequacy of staffing across the front, middle and back office This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. 13 Engagement summary • Based on D&T's review and assessment of DME's risk management capabilities, it is our observation that while DME is lacking certain risk infrastructure (e.g. a capable risk management system) to support DME's energy and risk management program, the organization is generally structured, staffed, and capable of managing the utility's risks • With some enhancements to the technology infrastructure and a more consistent focus on reporting and communication, DME would be comparable to other similarly sized municipal utilities. This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. la FY 17 Benchmark Analysis FY 17 Benchmark Analysis What benchmarks were considered? Option 0Day-ahead + 3.5 heat rate adder Option 9 -30 -XX Forward Curve • Use the day -ahead power market as a benchmark • Add a risk premium and profit margin by using a 3.5 heat rate adder • Advantage: • Simple to quantify and measure • Disadvantage: • Consistently moves with the day -ahead market • Cost savings will always contain a premium relative to the market • The 3.5 heat rate adder is ambiguous and subjective • Uses the forward curve on the last day of the prior fiscal year • Does not add a premium/profit margin; simply price x volume • Advantage: • Market-based and set's a clear target to beat • Disadvantage: • Does not consider DME's objectives, risk or the impact of uncertainty This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. 16 FY17 Benchmark Analysis Benchmark pact This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. D&T Calculation Option O day -ahead + 3.5 $ 36,868,926 Benchmark Costs D&T Calculation Option O without heat rate adder $ 28,952,360 D&T Calculation u(m Option 9-30-2016 Forward Curve $ 30,618,559 EMO Costs Provided by EMO EMO Costs $ 26,537,952 D&T Calculation Option 0 day -ahead + 3.5 $ 10,330,974 Savings D&T Calculation Option 0 without heat rate adder $ 2,414,407 D&T Calculation 4om Option 01W, 9-30-2016 Forward Curve $ 4,080,606 This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Changing the focus from cost savings to risk mitigation and value-added • What's the purpose of the cost savings calculation? • If you assume that it's to assess the performance and value of the DME's energy and risk management function, it should be focused on desired outcomes and how well DME achieves the outcomes • Outcomes should be mapped to objectives or a quantitative statement of what DME is trying to achieve • What would be considered good outcomes for the DME and its customers? - Stable electricity rates when prices rise? - Competitive and lower rates when prices fall? • How do you accomplish this? 1. By having a set of paired and market -compatible objectives 2. By having a hedge strategy and risk limits that have been demonstrated to achieve those objectives 3. By having the risk infrastructure (data capture, risk quantification, and monitoring) in place to know when to act • #1 and #2 form the basis for the benchmark and the assessment of performance and value This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. is Objective-Setting Specific, Quantifiable, and ActionabI4 Manage th tension betw, and 4 Manage the customer's rate risk Manage the ?xecuted hedges This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Clearly defined, quantifiable, and market compatible objectives allow for simple measurement of performance and effectiveness IIIUII 1111111 i i This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. Recommended Next Steps Recommended Next Steps Based on D&T's analysis and assessment of DME and the EMO, including the risk assessment and benchmark, we recommend the following next step in order to complete the process of assessing and addressing the risks inherent in DME's mission to provide stable and competitive electric rates to it's customers: • Risk profile and hedge strategy assessment: Consider quantifying the risk of DME's evolving portfolio of resources, obligation to provide power to customers, and the impact of supply uncertainty on end-user electricity rates. This should include the evaluation of different forward, financial hedge strategies designed to accomplish DME's mission to provide stable and competitive electric rates. This presentation is intended solely for the information and internal use oft he City of Denton and should not be used or relied upon by any other person or entity. zz Appendix Governance: Risk Governance Hierarchy BOD Oversight Risk Management Committee Segregation of Duties ("SOD") RMP Policy and Administration Policy Updates Objective -setting and Hedge Strategy Design Risk Profiling and Hedge Strategy Analysis Risk Appetite Risk Limits Book Structure Delegation of Authority ("DOA") People: Knowledge Sharing Roles and Responsibilities Adequacy of Resources Risk Department Structure ITY OF E1' TO Denton Municipal Electric 1659 Spencer Rd., Denton, TX 76205 • (940) 349-8487 WA TWA 1 NL M 1 DATE:December 7, 2017 TO: Todd Hileman, City Manager FROM: George Morrow, General Manager -- DME SUBJECT: General Manager's Comments on Deloitte Report Over the past several months, DME staff members have provided documentation and information to Deloitte to assist them in assessing DME's Energy Management Organization (EMO). A key objective of this exercise was to develop recommendations to enhance the effectiveness of the EMO business unit from a risk management standpoint. As General Manager of DME, I have reviewed Deloitte's report and recommendations in this regard and offer the following comments. Deloitte's EMO assessment was comprehensive and professional. As I undertake my own assessment of the EMO operation, Deloitte's findings and recommendations will provide me with a roadmap for making early, high value enhancements to the EMO. It is my intention to implement all recommendations to the greatest extent possible and to report their status periodically to the City Manager and, per his direction, to the Public Utility Board and City Council. From my discussions with the EMO leadership, I learned that many efforts are already underway to address key Deloitte findings and to prioritize future action items. On items we are not currently addressing, I will be working with staff to initiate such improvements as early as practicable. One of Deloitte's more significant recommendations is to update DME's Risk Management Policy. In this regard, I plan to complete a Risk Management Policy update over the next sixty days and will seek PUB and City Council review and approval shortly thereafter. During this period, I also plan to work closely with Deloitte to develop a risk profile for the energy trading operation to ensure that DME has a market risk strategy consistent with a not-for-profit publicly owned electric utility. Other high priority recommendations of the Deloitte review team relate to trade "capture", energy portfolio valuation, risk measurement/assessment and internal reporting. From all indications, the existing DME system used for this purpose is not capable of consistently performing these duties due to increased market/trade complexities. Staff has proposed an Energy Trading and Risk Management (ETRM) system replacement — Deloitte has also OUR CORE VALUES Integrity • Fiscal Responsibility • Transparency 9 Outstanding Customer Service identified this item as a high priority. I am currently assessing the replacement ETRM system and will be making a recommendation on how to proceed forward shortly. In conclusion, I want to thank the Deloitte and EMO teams for their hard work to advance DME's critical Energy Management Organization function. I was pleased with Deloitte's conclusion that no major flaws exist in the EMO operation that cannot be rectified. I hope to personally validate this conclusion from my own review of DME's power supply and market operations organization over the next several months. I am looking forward to zealously overseeing the needed EMO improvements. George F. Morrow General Manager -- DME 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN File #: ID 17-1655, Version: 1 Legislation Text AGENDA CAPTION Receive a report, hold a discussion and provide direction on design options and schedule for the proposed reconstruction of Fire Station 3. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton city Hale 41"X'IAIW�215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Transportation CM/ DCM/ ACM: Mario Canizares DATE: December 12, 2017 SUBJECT ..Title Receive a report, hold a discussion and provide direction on design concepts and schedule for the proposed reconstruction of Fire Station 3. ..Body BACKGROUND On September 12, 2017, staff presented the City Council with schematic design details for the replacement of Fire Station 3. This station is scoped to be larger than the existing station to accommodate an additional Ladder Truck, based the Fire Department's Facility Study. This larger footprint was incorporated into the Fire Department's 2014 Bond Proposal to address the operational life of the building which is programmed to be in excess of fifty years and to adequately serve reasonable expansion projections of the Fire Department. Plans that were presented, during the Council Work Session in September, represented approximately 40 - percent of the design level for the proposed facility. The intent of the presentation was to demonstrate spatial relationships, scale and form of the station and provide Council the opportunity to weigh in on design components. The presentation included three facility scopes or floor plans were developed and considered as well as three options for foundations and two facade options. Staff received direction to advance the architect recommended foundation, drilled pier with structural slabs, a more robust foundation providing the best structural support for the building, considering anticipated useful life of the station to be greater than 50 years. Council also provided direction to advance the facility design with a traditional masonry facade similar to the recently completed Station 2 and Station 4, currently under construction. The third design option considered by Council as part of the schematic design presentation was the floor plan. Three scopes were presented as follows: Scope 1 with an approximate area of 16,100 square feet, Scope 2 phased construction of a 15,332 square foot facility (initial floor plan of 13,457) and Scope 3, a 14,092 square foot phased floor plan (initial floor plan of 12,217 square feet). Each of the three scopes considered incorporated similar design layouts and features from Station 2 and Station 4, as well as lessons learned from the recently completed Station 2. Council advised staff to move forward with a final design on Scope 1, in order to capitalize on economies of scale as part of the construction process and to reduce the potential of inflated construction costs of phased construction in the out years. Council asked staff to seek opportunities to reduce the proposed 16,100 square foot floor plan presented. Kirkpatrick Architectural Studio worked closely with Fire Department design representatives and City of Denton Facilities Management representatives in identifying a total reduction of 420 square feet to scope. This resulted in a floor plan of 15,680 square feet. The vehicle bay was reduced by 340 square feet, the living quarters were reduced by 44 square feet and the support areas by 36 square feet. The design team is seeking Council direction for two remaining design options: The type of roofing system and type of heating ventilation and air conditioning (HVAC) system. The architect has determined the cost of two different roof options and two different HVAC options for Station 3. Each of these options are outlined below: Roofing Options: Hyload Roof System: • $248,108 — base bid • Hyload is standard for City facilities • Roofing membrane 60 mil thick with a flood coat (tar) and gravel • Twenty year warranty no dollar limit restriction, no pedestrian traffic restrictions, includes up to 4" hail • Hyload Manufacturing representative provides the City with architectural services and professional inspection services throughout the construction phase at no cost to the City Thermoplastic Polyolefin (TPO) Roof System: • $169,698 ($78,410 less than base bid Hyload roof) • Economical roofing system that can be purchased, scoped cost is 45 mil thickness • No flood coat (tar) or gravel • No warranty against hail • No warranty against gale force winds (40 mph or over) • No warranty against pedestrian traffic associated with roof or HVAC maintenance • Anticipated higher life -cycle cost due to maintenance and replacement schedule HVAC Options: Variable Refrigerant Flow (VRF): • $275,000 — base bid • City of Denton Facilities Management team believes the VFR is the best system for this facility due to enhanced ability to control multiple zones independently allowing the opportunity to better control infrequently occupied spaces, thus reducing operational cost. • Engineer's estimate indicates payback of 3.8 years. • VRF system anticipated life 20 — 25 years Roof Top Units (RTU): • $262,218 ($12,782 less than VRF base bid) • RTUs are less expensive to install but cost more to operate and have higher life cycle maintenance cost • RTUs add weight to the roof and require more foot traffic on roof • RTUs require aesthetic screening from street elevation • RTUs have anticipated life of 12-15 years ESTIMATED SCHEDULE OF PROJECT Finalization of Construction Documents is estimated to take 18 weeks, followed by submittal of plans for building permit, advertising and Council consideration/award of construction contract in the fall of 2018. Construction phase is estimated to take 18 months and is estimated to start in December of 2018. PRIOR ACTION/REVIEW (Council, Boards, Commissions) December 13, 2016 — Station 4 Construction Contract January 10, 2017 — Station 4 design process April 11, 2017 — Station 3 design process April 18, 2017 — Station 3 design contract awarded September 12, 2017 — Station 3 schematic design review FISCAL INFORMATION The 2014 Bond Program estimated the reconstruction cost of Station 3 to be $8,620,000. The City of Denton closed on the property in May 2016 in the amount of $1,776,000. Kirkpatrick Studios was awarded a design contract in the amount not to exceed $652,000 for the design of Station 3 on April 18, 2017. The revised opinion of probable cost for the recommended design is $6,280,163. As reported in September, the current project account has a deficit due to transfers to Station 4 and to the Burn Tower. Based on recommended design elements of Station 3 the project has a deficit of approximately $1,682,750 as estimated in the professionally developed Opinion of Probable Cost (Exhibit 3) 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: 1.1 Manage financial resources in a responsible manner EXHIBITS Agenda Information Sheet 2. Fire Station 3 PowerPoint Presentation 3. Opinion of Probable Cost Respectfully submitted: Mark Nelson Transportation Director SIR City Council December 12, Zo17 4COJIFY4&0� •Site Plan Review •Design Direction •Floor Plan Review •Opinion of Probable Cost •Building Systems Recommendations DENTON Fire Station No.3 D NTON Fire Station No.3: Site Plan / rrr / i i /rrr / 7q t / p / DNTON Fire DesignDirection n'Ta Fire Station No.3: Scope 1 Scope Reduction -Vehicle Bay: 340 Sq Ft -Living Quarter: 44 Sq. Ft. 36 Sq. Ft. Schematic Design Estimate (Sept 2017) s6,o65,000 $377/SF Design Development Estimate s6,28o,163 $401/SF Opinion of ProbaWe Cost Roofing Hyload (City standard — 20 yr) Base Bid $248,108 TPO (single membrane) -$78,410 HVAC Variable Refrigerant Flow (VRF) Base Bid $275,000 Roof -Top Units (RTU) -$12,782 DENTONFire Station No.3 : Budding Systems Opinion of ProlbaWe Cost 6,28o,:L63 2014 Bond Estimate $8,620,000 Land Acquisition $1,776,78o 66,843,220 Real Estate and Design Services $71,607 66,771,613 Design Cost (Kirkpatrick) $652,200 s6,119,413 Station No. 4 and Burn Tower Transfer $11272,000 $4,847,413 Baseline Cost Estimate s6,28o,163 Price Per Square Foot $400.48 ($1,432,750) Site Cost $1,570,041- Building 1,570,041Building Cost $4,710,122 FF&E Estimate $250,000 ($�i.,682, 0) Total $10,302,750 Estimated Schedule -Fire Station No. 3 Project ��Illlllliui iiiiiiiiiiu Iu�««{u«<II1 ��pnnnn�� " Illlllllliii� i�lllllllllllllii� Pill .]./2/2oi.8 5/l./2015 -Solicit bids -Evaluate Bids -Council -Finalize -Contraction -E Finalize Submit Consideration Contract mobilization/ Co Construction construction of Contract Bonds & construction Dat Document documents Insurance Develop- for building ment permit A Weeks Ili uuuudllllll���uiuiudllllllllliiiuuiiiillllllllllluuuuii�IIIIIIIIIuiiuulllll������iluudiu�IIIIIIIIIuiiuuuii�IIIIIIII�����������III�I�����IIIIIU��� �rt.r„N Fire Station No3 : Schedule ■ Questions - Direction 0 1 • Fire Station No. 3 Enclosed Area Page 1 Denton, Texas First Floor - 15,680 Total Enclosed Area - 15,680 sf Revised: Dec. 8, 2017 Edited By: Created By: Kirkpatrick Architecture Studio CES - Computerized Estimating Services 100 West Mulberry 2823 VZ CR 1222 Denton, Texas 76201 Grand Saline, Texas 75140 940-387-8182 800-705-7595 Bill Morgan or David Robinson Greg Blanchard No. DD Estimate Total Cost $/sf % of Total Site Cost Building Cost 1 General Conditions - 18 months 366,157 $23.35 5.83% 91,539 274,618 2 Allowances 120,000 $7.65 1.91% 30,000 90,000 3 Building Permit Fee 60,000 $3.83 0.96% 15,000 45,000 4 Testing & Inspection 0 $0.00 0.00% 5 Selective Site Demolition 48,149 $3.07 0.77% 48,149 6 Building Demolition 31,528 $2.01 0.50% 31,528 7 Mass Excavation 63,613 $4.06 1.01% 63,613 8 Soil Stabilization 36,879 $2.35 0.59% 36,879 9 Termite Control 3,400 $0.22 0.05% 3,400 10 Site Drainage 63,300 $4.04 1.31% 63,300 11 Site Utilities 42,390 $2.70 0.67% 42,390 12 Landscaping & Irrigation 150,000 $9.57 2.39% 150,000 13 Fencing 43,875 $2.80 0.70% 43,875 14 Pavement Markings 2,787 $0.18 0.04% 2,787 15 Site Concrete 320,403 $20.43 5.10% 320,403 16 Building Concrete 484,464 $30.90 7.71% 484,464 17 Masonry 534,819 $34.11 8.52% 50,159 484,660 18 Structural Steel 287,140 $18.31 4.57% 287,140 19 Miscellaneous Metals 11,675 $0.74 0.19% 10,100 1,575 20 Rough Carpentry 11,160 $0.71 0.18% 3,840 7,320 21 Finish Carpentry 3,128 $0.20 0.05% 3,128 22 Millwork 99,190 $6.33 1.58% 99,190 23 Wp, Dp & Joint Sealants 20,860 $1.33 0.33% 20,860 24 Building Insulation 45,784 $2.92 0.73% 45,784 25 Roofing & Sheetmetal 248,108 $15.82 3.95% 248,108 26 Metal Doors & Frames - Maf9s FOB Jobsite 18,980 $1.21 0.30% 18,980 27 Wood Doors - Maris FOB Jobsite 8,520 $0.54 0.14% 8,520 28 Finish Hardware - Maris FOB Jobsite 19,400 $1.24 0.31% 19,400 29 Labor to Install Drs, Frms & Hardware 13,970 $0.89 0.22% 13,970 30 Special Doors 160,000 $10.20 2.55% 160,000 31 Glass & Glazing 18,935 $1.21 0.30% 18,935 32 Drywall & Acoustical 164,093 $10.47 2.61% 164,093 33 Tile Work 66,532 $4.24 1.06% 66,532 34 Stain Polished Concrete Floors 49,397 $3.15 0.79% 49,397 35 Carpet & Resilient 2,438 $0.16 0.04% 2,438 36 Sport Flooring 7,020 $0.45 0.11% 7,020 37 Painting 71,392 $4.55 1.14% 3,372 68,020 38 Toilet Accessories 6,615 $0.42 0.11% 6,615 39 Flagpoles 2,600 $0.17 0.04% 2,600 40 Identification Devices 9,670 $0.62 0.15% 9,670 41 Lockers 22,100 $1.41 0.35% 22,100 42 Fire Extinguishers & Cabinets 1,160 $0.07 0.02% 1,160 43 Site Embellishments 2,050 $0.13 0.03% 2,050 44 Residential Equipment 85,000 $5.42 1.35% 85,000 45 Window Treatment 3,900 $0.25 0.06% 3,900 46 Entrance Mats 5,568 $0.36 0.09% 5,568 47 Plumbing 250,000 $15.94 3.98% 250,000 48 Fire Protection 37,637 $2.40 0.60% 37,637 49 HVAC 275,000 $17.54 4.38% 275,000 50 Electrical 425,000 $27.10 6.77% 46,750 378,250 51 Fire Alarm 29,929 $1.91 0.48% 29,929 Subtotal - Escalation March, 15, 2018 - 8% Design Contingency - Subtotal - General Liability Insurance - Builder's Risk Insurance - 8% Overhead 6%Fee Subtotal General Contractor's Bondi 4,855,715 145,671 400,111 5,401,497 29,708 10,803 432,120 350,0171 6,224,145 56,0181 $309.68 $9.29 $25.51 $344.48 $1.89 $0.69 $27.56 $22.32 $396.94 $3.571 77.32% 2.32% 6.37% 86.01% 0.47% 0.17% 6.88% 5.57%1 99.11%1 0.47%1 1,058,334 36,418 100,028 1,194,780 7,427 2,701 108,030 87,5041 1,400,442 14,0041 3,797,381 109,254 300,083 4,206,718 22,281 8,102 324,090 262,513 4,823,704 42,013 DD Estimate - $6,280,163.00 $400.51 100% $1,570,041 $4,710,122 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1710, Version: 1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding the potential funding for small scale traffic improvements and the Vela Athletic Complex project. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton city Hale 41"X'IAIW�215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: City Manager's Office CM/ DCM/ ACM: Mario Canizares DATE: December 12, 2017 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the potential funding for small scale traffic improvements and the Vela Athletic Complex project. BACKGROUND There are two items to bring forward for discussion and seek direction from City Council regarding small scale traffic improvements and the Vela Athletic Complex project. Small Traffic Improvement Projects: At the August 26, 2017, City Council Retreat, the City Council gave direction to Staff to develop a short- term plan that would make immediate traffic flow improvements within the City. As a result, Traffic Engineering staff has identified six intersection improvements that would address citizen complaints, alleviate congestion, and improve safety. The criteria used in identifying these intersection are: 1) if implemented, would the improvements make an immediate, positive impact on traffic congestion 2) can it be quickly and easily engineered/designed, 3) would the project construction begin and be complete or mostly complete within the FY 2017/18 budget. The costs for the six projects identified are: Project Short -Term Improvement Estimated Cost Extend 288/Colorado Extend the eastbound left turn lane $200,000 Country Club/Hickory Creek Rd. Add a westbound right hand turn lane $150,000 US 77/Dallas Dr./Teasley Ln. Add turn lanes, channelized islands $725,000 Bell Ave./McKinney Add a northbound right turn lane $120,000 Carroll Blvd./Sherman Rd. Add a northbound left turn land and improve the turning radius on the southeast corner $425,000 University Dr./Old North Road Add left turn lanes (north -south) $500,000 Totals $2,120,000 Vela Sports Complex Project: The Vela Athletic Complex is a 26 -acre campus located at the northeast corner of North Lakes Park on Riney Rd just off Highway 77. It is designed to include four lighted athletic fields, a playground area, three pavilions, restroom facilities and a concession stand. The fields are sized to host adult soccer, rugby, football, and lacrosse. The engineers probable cost estimate for the project is $5,505,912.50; however, the project has a shortfall of $2,330,000. The project is scheduled to go out for bid this month with the bid opening in January 2018. FISCAL INFORMATION In working with the Finance Department we have been able to identify approximately $3,000,000 in available funds from better than projected revenues and expenditures in the FY 2016/17 General Fund budget. Also $1,755,000 in project funds within the Parks CIP have been identified and can be re -prioritized to cover the cost for the remainder of the Vela Sports Complex Project. The following is a breakdown of how these funds could be re -prioritized. From: Funding Source Amount To: Project FY 2016/17 Budget Balance $2,120,000 Small Traffic Improvements 2014 GO Bond Program: Property acquisition $1,005,000 Vela Sports Complex Southwest Park Master Plan & Design $ 750,000 Vela Sports Complex FY 2016/17 Budget Balance $ 575,000 Vela Sport Complex Total $2,330,000 Based on the revenue and expenditure estimates and if the above funds are reallocated as requested the City's fund balance in the General Fund would still increase by $305,000. Preliminary FY 2016/17 year- end actuals reflect a fund balance in the General Fund of approximately 27%. The additional drawdown would decrease the percentage to approximately 24% which is still within the adopted fund balance policy (20-25%) for the General Fund. RECOMMENDATION Staff is seeking direction from the City Council to proceed with the reallocation of funds for the Small Traffic Improvements and the Vela Sports Complex. If Council agrees with this proposal, then the Finance Department would prepare a budget amendment for the City Council's consideration at the January 9, 2018 City Council meeting. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Vela Athletic Complex briefing was made to the City Council at the September 12, 2017 and December 5, 2017 meetings. The Small Traffic Improvements Projects were presented to the Mobility Committee at their October 10, 2017 meeting. BID INFORMATION Not applicable for 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: Public Infrastructure Related Goal: 2.5 Develop Capital Improvement Program (CIP) based on community needs EXHIBITS 1. Agenda Information Sheet 2. PowerPoint Presentation Respectfully submitted: Mario Canizares Assistant City Manager City Council Presentation City Manager's Office December 12, 2017 EM, o, Topic #1: Receive a report, hold a discussion, and give staff direction regarding the potential funding for small scale traffic improvement projects. o, Topic #2: Receive a report, hold a discussion, and give staff direction regarding solutions to the funding shortfall for the Vela Athletic Complex project. o, At the August 26, 2017 City Council Retreat, staff was given direction to develop a plan for short-term traffic improvements o, At the December 5, 2017 City Council meeting, staff was given direction to develop a plan to fund the shortfall for the Vela Athletic Complex. o, 26 -acres parcel of land and designed for: u 4 -lighted athletic fields, playground area, 3 pavilions, restrooms, and concession stand Soccer, rugby, football, and lacrosse o, Engineer's estimate: $5,505,913 o, Project bidding in December 2017, bid opening late January 2018 u Finance Department identified approximately $3,000,000 in funds from better than projected revenues and expenditures in the FY 2016/17 budget u $1,755,000 in Parks CIP have been identified and can be re -prioritized to cover the cost for the remainder of the Vela Sports Complex Project. $2,120,000 $ 1,005,©00 $2,330,000 u If the FY 2016/17 budget funds are re -allocated, the City's fund balance in the General Fund would still increase by $305,000. o, Staff is seeking direction from the City Council to proceed with the reallocation of funds for the Small Traffic Improvements and the Vela Sports Complex. o, If approved, the Finance Department would prepare a budget amendment for the City Council's consideration at the January 9, 2018 City Council meeting. Mario Canizares City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1706, Version: 1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding City staff and organizational changes. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN File #: ID 17-1658, Version: 1 Legislation Text AGENDA CAPTION Deliberations Regarding Personnel Matters - Under Texas Government Code Section 551.074 Discuss and deliberate regarding the evaluation of candidates and the appointment/employment of a City Auditor. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEYPIN Legislation Text File #: ID 17-1695, Version: 1 AGENDA CAPTION Deliberations regarding Real Property - Under Texas Government Code, Section 551.072; and Consultation with Attorneys - Under Texas Government Code, Section 551. Receive information from staff, discuss, deliberate, and provide staff with direction pertaining to the status, strategy, and possible resolution of condemnation case styled City of Denton, Texas v. RTS&M, LLC, et al., Cause No. PR -2014-00492, currently pending in the Probate Court of Denton County, Texas; Consultation with the City's attorneys regarding legal issues associated with the condemnation of the real property interests where a public discussion of these legal matters could jeopardize the City's legal position in any administrative proceeding or potential litigation. [Mayhill Road Widening & Improvements project - Parcel M134] City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEYPIN Legislation Text File #: ID 17-1700, Version: 1 AGENDA CAPTION Deliberations regarding a Personnel Matter - Under Government Code, Section 551.074; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. Deliberate and discuss the appointment and duties of an interim Internal Auditor and contracting out certain functions of the Internal Auditor on an interim basis; consultation with the City's attorneys regarding associated legal issues where a public discussion associated with 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 City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEYPIN Legislation Text File #: ID 17-1711, 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 1301 S. Mayhill Rd., Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with 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 12/8/2017 powered by I-eg;gl;>karI City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEYPIN Legislation Text File #: ID 17-1373, Version: 1 AGENDA CAPTION Consider adoption of an ordinance awarding a contract for radio network design and installation services, the installation of new transmission lines, and the linking of radio communications between seven facilities in relation to the upgrade of the City of Denton Water Production Department's Radio Communication System as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR-SDD-2678; providing for the expenditure of funds therefor and providing an effective date (File 6518 -awarded to Johnston Technical Services, Inc. in the not -to -exceed amount of $196,496.99). The Public Utilities Board will consider this item on December 11, 2017. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton City Hail 215 E. McKinney Street DENTO) Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance awarding a contract for radio network design and installation services, the installation of new transmission lines, and the linking of radio communications between seven facilities in relation to the upgrade of the City of Denton Water Production Department's Radio Communication System as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR-SDD-2678; providing for the expenditure of funds therefor and providing an effective date (File 6518 -awarded to Johnston Technical Services, Inc. in the not -to -exceed amount of $196,496.99). The Public Utilities Board will consider this item on December 11, 2017. BACKGROUND INFORMATION Water Production uses licensed and unlicensed microwave radios to communicate to and with all of its facilities. The type of communications used with these radios is data or process control, access control, city network and phones, up to the Lake Ray Roberts plant and security camera feeds. Process control is the primary use of the radios which makes the reliability of these systems very important for the management of the water treatment process and maintenance of the distribution system pressure and water quality. Johnston Technical Services (JTS) has been used exclusively for Water Production microwave radio needs, dating back to 2003. In 2012, Water Production with the assistance of Malcolm Pirnie Engineers, developed a 5 -year master plan for the division's plant supervisory control and radio communication systems. One of the projects identified from this plan addresses the radio system's single source of failure. The recommendation is to design and install a radio system that loops communications between the facilities and eliminates the single source of failure. To create the looping radio network, 4 new radio links will be installed and 3 existing radio links will be relocated (Exhibit 2 -Loop Drawing). The recommended supplier of the radio equipment and maintenance of the equipment, Johnston Technical Services, Inc., provided a quote through the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, which is incorporated into the attached contract (Exhibit 4). Use of the DIR meets State of Texas statutory requirements for competitive bidding (Government Code 2054.0565). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On December 11, 2017, the Public Utilities Board will consider this item for recommendation to forward to City Council. RECOMMENDATION Award to Johnston Technical Services, Inc. in the not -to -exceed amount of $196,496.99. PRINCIPAL PLACE OF BUSINESS Johnston Technical Services, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT The design and installation services are estimated to be completed by summer of 2018. FISCAL INFORMATION This project will be revenue funded through Water Production's Capital Improvement Plan Project Account# 630395517.1360.40100. Requisition# 136773 has been entered in the Purchasing software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.3 Promote superior utility services and City facilities EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Loop Drawing Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Karen Smith, 349-7100 Purchasing Manager For information concerning this acquisition, contact: Randy Markham at 349-7526. ORDINANCE NO. CONSIDER ADOPTION OF AN ORDINANCE AWARDING A CONTRACT FOR RADIO NETWORK DESIGN AND INSTALLATION SERVICES, THE INSTALLATION OF NEW TRANSMISSION LINES, AND THE LINKING OF RADIO COMMUNICATIONS BETWEEN SEVEN FACILITIES IN RELATION TO THE UPGRADE OF THE CITY OF DENTON WATER PRODUCTION DEPARTMENT'S RADIO COMMUNICATION SYSTEM AS AWARDED BY THE STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES (DIR) THROUGH THE GO DIRECT PROGRAM, CONTRACT NUMBER DIR-SDD-2678; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR AND PROVIDING AN EFFECTIVE DATE (FILE 6518 -AWARDED TO JOHNSTON TECHNICAL SERVICES, INC. IN THE NOT -TO -EXCEED AMOUNT OF $196,496.99.) WHEREAS, pursuant to Resolution 92-019, the State of Texas has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the State of Texas Department of Information Services Go Direct Program at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "File Number" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE Ni TMF.R VF,NDOR AMOUNT 6518 Johnston Technical Services, Inc. $196,496.99 SECTION 2. That by the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the State of Texas Department of Information Services Go Direct Program for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities, and for the specified sums contained in the bid documents and related documents filed with the State of Texas Department of Information Services Go Direct Program, and the Purchase Orders issued by the City. SECTION 3. That should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the State of Texas Department of Information Services Go Direct Program, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, and standards contained in the Proposal submitted to the State of Texas Department of Information Services Go Direct Program, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. That 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, CITY ATTORNEY BY: t DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND JTS INC. (FILE 6518) THIS CONTRACT is made and entered into this date , by and between Johnston Technologies Inc. DBA JTS Inc. a corporation, whose address is 5310 S Cockrell Hill Rd, Dallas, TX 75236, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and/or services in accordance with the Texas DIR Contract DIR-TSO-2678 — Data Communications and Networking Equipment and Related 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) Texas DIR Contract DIR-TSO-2678 (Exhibit "B" on File at the Office of the Purchasing Agent); (c) Contractor's Pricing Proposal (Exhibit "C"). These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CONTRACTOR Johnston Technologies Inc. DBA as JTS Inc. Doc.:wSigned by: BY:Sr�r AUTH MmIGNATURE Date: 12/7/2017 Name: John Thompson Title: Sales Manager 972-620-1435 PHONE NUMBER john.thompson@jts.net EMAIL ADDRESS CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: TODD HILEMAN CITY MANAGER Date: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY DocwSigned by � tf BY:E, 253aAC4 84a;Q[- FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 EXHIBIT A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $196,496.99. Pricing shall be per Exhibit C attached. 2. Contract Terms The Contract shall commence upon the issuance of a Notice to Proceed or Purchase Order by the City of Denton and shall automatically expire upon completion of the work or receipt of the materials, and acceptance by the City of Denton. 3. 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. FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 DIR Contract No. DIR-TSO-2678 Vendor Contract No. STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES JOHNSTON TECHNICAL SERVICES, INC. DBA JTS 1. Introduction A. Parties This Contract for products and related services is entered into between the State of Texas, acting by and through the Department of Information Resources (hereinafter "DIR") with its principal place of business at 300 West 15a' Street, Suite 1300, Austin, Texas 78701, and Johnston Technical Services, Inc. dba JTS (hereinafter "Vendor"), with its principal place of business at 5310 South Cockrell Hill Road, Dallas, Texas 75236. B. Compliance with Procurement Laws This Contract is the result of compliance with applicable procurement laws of the State of Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State Business Daily, Request for Offer (RFO) DIR-TSO-TMP-209, on December 6, 2013, for Data Communications and Networking Equipment and Related Services. DIR subsequently issued a BAFO opportunity on June 5, 2014. Upon execution of this Contract, a notice of award for RFO DIR-TSO-TMP-209 shall be posted by DIR on the Electronic State Business Daily. C. Order of Precedence For purchase transactions under this Contract, the order of precedence shall be as follows: this Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Service Level Agreement; Exhibit 1, Vendor's Response to RFO DIR-TSO-TMP-209, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-209, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor governing purchase transactions. In the event of a conflict between the documents listed in this paragraph related to purchases, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D, then Exhibit 1, and finally Exhibit 2. In the event and to the extent any provisions contained in multiple documents address the same or substantially the same subject matter but do not actually conflict, the more recent provisions shall be deemed to have superseded earlier provisions. 2. Term of Contract The term of this Contract shall be two (2) years commencing on the last date of approval by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor may extend the Contract, upon mutual agreement, for up to two (2) optional one-year terms. Protracted contract negotiations may, in DIR's sole discretion, result in fewer optional terms. Page 1 of 4 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 DIR Contract No. DIR-TSO-2678 Vendor Contract No. 3. Product and Service Offerings A. Products Products available under this Contract are limited to networking products as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their product offering; however, any changes must be within the scope of products awarded based on the posting described in Section 1.13 above. Vendor may not add a manufacturer's product line which was not included in the Vendor's response to the solicitation described in Section 1.13 above. B. Services Services available under this Contract are limited to related networking services as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their service offering; however, any changes must be within the scope of services awarded based on the posting described in Section 1.13 above. 4. Pricing Pricing to the DIR Customer shall be as set forth in Appendix A, Section 8, Pricing, Purchase Orders, Invoices and Payment, and as set forth in Appendix C, Pricing Index, and shall include the DIR Administrative Fee. 5. DIR Administrative Fee A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sales to Customers pursuant to this Contract is three-quarters of one percent (0.75%). Payment will be calculated for all sales, net of returns and credits. For example, the administrative fee for sales totaling $100,000 shall be $750.00. B) All prices quoted to Customers shall include the administrative fee. DIR reserves the right to change this fee upwards or downwards during the term of this Contract, upon written notice to Vendor without further requirement for a formal contract amendment. Any change in the administrative fee shall be incorporated in the price to the Customer. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Dana L. Collins, CTPM, CTCM Manager, Contract and Vendor Management Department of Information Resources 300 W. 15a' St., Suite 1300 Austin, Texas 78701 Phone: (512) 936-2233 Facsimile: (512) 475-4759 Email: dana.collins@dir.texas.gov Page 2 of 4 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 DIR Contract No. DIR-TSO-2678 Vendor Contract No. If sent to the Vendor: Kyle Fuller Johnston Technical Services, Inc. dba JTS 5310 S. Cockrell Hill Road Dallas, TX 75236 Phone: 972-620-1435 x125 Facsimile: 972-247-5023 Email: kyle(a�jts.net 7. Software License and Service Agreements A. Shrink/Click-wrap License Agreement Regardless of any other provision or other license terms which may be issued by Vendor after the effective date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Contract, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink-wrap), the terms and conditions set forth in this Contract shall supersede and govern the license terms between Customers and Vendor. It is the Customer's responsibility to read the Shrink/Click-wrap License Agreement and determine if the Customer accepts the license terms as amended by this Contract. If the Customer does not agree with the license terms, Customer shall be responsible for negotiating with the reseller to obtain additional changes in the Shrink/Click-wrap License Agreement language from the software publisher. B. Service Agreement Services provided under this Contract shall be in accordance with the Service Agreement as set forth in Appendix D of this Contract. No changes to the Service Agreement terms and conditions may be made unless previously agreed to by Vendor and DIR. C. Conflicting or Additional Terms In the event of a conflict between the terms of the Vendor Software License Agreements, Service Agreements or linked or supplemental documents and the Contract which amend or diminish the rights of DIR Customers or the State provided for in the Contract, such conflicting terms shall not take precedence over the terms of this Contract. In no event will any linked document alter or override any term of the Contract, nor will it change fees, prices, or the method of computing any of the foregoing. 8. Authorized Exceptions to Contract or any Appendices. No exceptions have been agreed to by DIR and Vendor. Page 3 of 4 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 DIR Contract No. DIR-TSO-2678 Vendor Contract No. This Contract is executed to be effective as of the date of last signature. JOHNSTON TECHNICAL SERVICES, INC. DBA JTS Authorized By: Signature on File Name: Jeremy Bi ham Title: President Date: 8/29/14 The State of Texas, acting by and through the Department of Information Resources Authorized By: Signature on File Name: Karen Robinson Title: Executive Director Date: 9/8/14 Office of General Counsel: drb 9/5/14 Page 4 of 4 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Amendment Number 1 to Contract Number DIR-TSO-2678 between State of Texas, acting by and through the Department of Information Resources and Johnston Technical Services, Inc. dba JTS This Amendment Number 1 to Contract Number DIR-TSO-2678 ("Contract") is between the Department of Information Resources ("DIR") and Johnston Technical Services, Inc. dba JTS ("Vendor"). DIR and Vendor agree to modify the terms and conditions of the Contract as follows: 1. Contract, Section 2. Term of Contract, is hereby amended as follows: DIR and Vendor hereby agree to extend the term of the Contract for one (1) year through September 8, 2017 or until terminated pursuant to the termination clauses contained in the Contract. Prior to expiration of the term, DIR and Vendor may extend the Contract, upon mutual agreement, for up to one (1) additional one-year term. 2. Appendix A. Standard Terms and Conditions for Product and Related Services Contracts, is hereby restated in its entirety and replaced with the attached Appendix A, Standard Terms and Conditions for Product and Related Services Contracts dated 06/21/2016. All other terms and conditions of the Contract as amended, not specifically modified herein, shall remain in full force and effect. In the event of conflict among the provisions, the order of precedence shall be Amendment Number 1, and then the Contract DIR- TSO - 2678. Amendment 1 DIR-TSO-2678 rev. 07/21/16 FILE# 6518 JTS Page 1 DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 IN WITNESS WHEREOF, the parties hereby execute this amendment to be effective as of the date of the last signature, but in all events, no later than September 8, 2016. Johnston Technical Services, Inc. dba JTS Authorized By: Signature on File Name: Kim Sheffler Title: Controller Date: 9/20/201619:56 AM CDT The State of Texas, acting by and through the Department of Information Resources Authorized By: Signature on File Name: Hershel Becker Title: Chief Procurement Officer Date: 9/23/201619:02 AM CDT Office of General Counsel: DB 9/22/2016 13:58 PM CDT Amendment 1 DIR-TSO-2678 rev. 07/21/16 FILE# 6518 JTS Page 2 DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 (Appendix A Standard Terms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope....................................................................................................................... 1 2. No Quantity Guarantees......................................................................................................... 1 3. Definitions..............................................................................................................................1 4. General Provisions................................................................................................................. 2 A. Entire Agreement.......................................................................................................... 2 B. Modification of Contract Terms and/or Amendments .................................................. 2 C. Invalid Term or Condition............................................................................................ 3 D. Assignment................................................................................................................... 3 E. Survival.........................................................................................................................3 F. Choice of Law............................................................................................................... 3 G. Limitation of Authority................................................................................................. 4 H. Proof of Financial Stability........................................................................................... 4 5. Intellectual Property Matters.................................................................................................. 4 A. Definitions.....................................................................................................................4 B. Ownership..................................................................................................................... 5 C. Further Actions............................................................................................................. 6 D. Waiver of Moral Rights................................................................................................ 6 E. Confidentiality..............................................................................................................6 F. Injunctive Relief............................................................................................................ 6 G. Return of Materials Pertaining to Work Product.......................................................... 7 H. Vendor License to Use.................................................................................................. 7 I. Third -Party Underlying and Derivative Works............................................................ 7 J. Agreement with Subcontracts....................................................................................... 7 K. License to Customer..................................................................................................... 8 L. Vendor Development Rights......................................................................................... 8 6. Product Terms and Conditions............................................................................................... 8 A. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapters 206 and 213 (Applicable to State Agency and Institution of Higher Education Purchases Only)......................................................... 8 B. Purchase of Commodity Items (Applicable to State Agency Purchases Only)............................................................................................................................. 8 7. Contract Fulfillment and Promotion...................................................................................... 9 A. Service, Sales and Support of the Contract................................................................... 9 B. Use of Order Fulfillers.................................................................................................. 9 06/21/2016 i FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 (Appendix A Standard Terms and Conditions For Product and Related Services Contracts 1) Designation of Order Fulfillers............................................................................... 9 A. Manufacturer's Suggested Retail Price (MSRP) or List Price .................................... 13 B. 2) Changes in Order Fulfiller List............................................................................. 10 C. 3) Order Fulfiller Pricing to Customer...................................................................... 10 C. Product Warranty and Return Policies........................................................................ 10 D. Customer Site Preparation.......................................................................................... 10 E. Internet Access to Contract and Pricing Information ................................................. 10 G. 1) Vendor Webpage.................................................................................................. 10 H. 2) Accurate and Timely Contract Information.......................................................... 11 I. 3) Webpage Compliance Checks.............................................................................. 11 J. 4) Webpage Changes................................................................................................. 11 9. Contract 5) Use of Access Data Prohibited............................................................................. 11 A. 6) Responsibility for Content.................................................................................... 11 F. DIR Logo.................................................................................................................... 12 G. Vendor and Order Fulfiller Logo................................................................................ 12 H. Trade Show Participation............................................................................................ 12 I. Orientation Meeting.................................................................................................... 12 J. Performance Review Meetings................................................................................... 12 K. DIR Cost Avoidance................................................................................................... 12 8. Pricing, Purchase Orders, Invoices, and Payments.............................................................. 13 A. Manufacturer's Suggested Retail Price (MSRP) or List Price .................................... 13 B. Customer Discount...................................................................................................... 13 C. Customer Price............................................................................................................ 13 D. Shipping and Handling Fees....................................................................................... 13 E. Tax-Exempt.................................................................................................................14 F. Travel Expense Reimbursement................................................................................. 14 G. Changes to Prices........................................................................................................ 14 H. Purchase Orders.......................................................................................................... 14 I. Invoices....................................................................................................................... 15 J. Payments..................................................................................................................... 15 9. Contract Administration....................................................................................................... 15 A. Contract Managers...................................................................................................... 15 1) State Contract Manager......................................................................................... 15 2) Vendor Contract Manager..................................................................................... 15 B. Reporting and Administrative Fees............................................................................ 16 1) Reporting Responsibility...................................................................................... 16 2) Detailed Monthly Report ...................................................................................... 16 3) Historically Underutilized Businesses Subcontract Reports ................................. 16 4) DIR Administrative Fee........................................................................................ 16 5) Accurate and Timely Submission of Reports....................................................... 17 C. Records and Audit....................................................................................................... 17 D. Contract Administration Notification......................................................................... 18 10. Vendor Responsibilities....................................................................................................... 18 A. Indemnification........................................................................................................... 19 06/21/2016 ii FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 (Appendix A Standard Terms and Conditions For Product and Related Services Contracts 1) INDEPENDENT CONTRACTOR....................................................................... 19 11. Contract Enforcement.......................................................................................................... 28 A. Enforcement of Contract and Dispute Resolution...................................................... 28 B. Termination.................................................................................................................28 1) Termination for Non-Appropriation..................................................................... 28 2) Absolute Right...................................................................................................... 29 3) Termination for Convenience............................................................................... 29 4) Termination for Cause.......................................................................................... 29 5) Immediate Termination or Suspension................................................................. 30 6) Customer Rights Under Termination.................................................................... 30 7) Vendor or Order Fulfiller Rights Under Termination ........................................... 31 C. Force Majeure............................................................................................................. 31 12. Notification.......................................................................................................................... 31 A. Notices........................................................................................................................ 31 B. Handling of Written Complaints................................................................................. 31 13. Captions............................................................................................................................... 31 06/21/2016 iii FILE# 6518 JTS 2) ACTS OR OMISSIONS....................................................................................... 19 3) INFRINGEMENTS.............................................................................................. 19 4) PROPERTY DAMAGE........................................................................................ 20 B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE ........................ 20 C. Vendor Certifications.................................................................................................. 21 D. Ability to Conduct Business in Texas......................................................................... 23 E. Equal Opportunity Compliance.................................................................................. 23 F. Use of Subcontractors................................................................................................. 23 G. Responsibility for Actions.......................................................................................... 23 H. Confidentiality............................................................................................................ 24 I. Security of Premises, Equipment, Data and Personnel ............................................... 24 J. Background and/or Criminal History Investigation.................................................... 24 K. Limitation of Liability................................................................................................. 24 L. Overcharges................................................................................................................ 25 M. Prohibited Conduct..................................................................................................... 25 N. Required Insurance Coverage..................................................................................... 25 O. Use of State Property.................................................................................................. 26 P. Immigration................................................................................................................. 26 Q. Public Disclosure........................................................................................................ 27 R. Product and/or Services Substitutions........................................................................ 27 S. Secure Erasure of Hard Disk Products and/or Services .............................................. 27 T. Deceptive Trade Practices; Unfair Business Practices ............................................... 27 U. Drug Free Workplace Policy...................................................................................... 27 V. Accessiblity of Public Information............................................................................. 28 W. Vendor Reporting Requirements................................................................................ 28 11. Contract Enforcement.......................................................................................................... 28 A. Enforcement of Contract and Dispute Resolution...................................................... 28 B. Termination.................................................................................................................28 1) Termination for Non-Appropriation..................................................................... 28 2) Absolute Right...................................................................................................... 29 3) Termination for Convenience............................................................................... 29 4) Termination for Cause.......................................................................................... 29 5) Immediate Termination or Suspension................................................................. 30 6) Customer Rights Under Termination.................................................................... 30 7) Vendor or Order Fulfiller Rights Under Termination ........................................... 31 C. Force Majeure............................................................................................................. 31 12. Notification.......................................................................................................................... 31 A. Notices........................................................................................................................ 31 B. Handling of Written Complaints................................................................................. 31 13. Captions............................................................................................................................... 31 06/21/2016 iii FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 The following terms and conditions shall govern the conduct of DIR and Vendor during the term of the Contract. 1. Contract Scope Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. In addition, DIR and Vendor may agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract. Telcos used in this document shall have the meanings set forth below in Section 3. 2. No Quantity Guarantees Note: NO EXCEPTIONS OR REVISIONS WILL, BE CONSIDERED The Contract is not exclusive to the Vendor. Customers may obtain products and related services from other sources during the term of the Contract. DIR makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the Contract. 3. Definitions A. Customer - any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, the Electric Reliability Council of Texas, the Lower Colorado River Authority, a private school, as defined by Section 5.001, Education Code, a private or independent institution of higher education, as defined by Section 61.003, Education Code, a volunteer fire department, as defined by Section 152.001, Tax Code,— and those state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecommunications services under Chapter 2170, Texas Government Code, assistance organizations as defined in Section 2175.001, Texas Government Code to mean: 1) A non-profit organization that provides educational, health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits, warehouses, and redistributes edible but unmarketable food to an agency that feeds needy families and individuals; 3) Texas Partners of the Americas, a registered agency with the Advisory Committee on Voluntary Foreign Aid, with the approval of the Partners of the Alliance Office of the Agency for International Development; 4) A group, including a faith -based group, that enters into a financial or non- financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74. 1011, Texas Agriculture Code; 06/21/2016 Page l of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used computer equipment to public school students and their families; and 9) A nonprofit organization that provides affordable housing. B. Compliance Check — an audit of Vendor's compliance with the Contract may be performed by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract management staff or their designees. C. Contract — the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA — refers to the Texas Comptroller of Public Accounts. E. Day - shall mean business days, Monday through Friday, except for State and Federal holidays, unless otherwise specified as calendar days. If the Contract calls for performance on a day that is not a business day, then performance is intended to occur on the next business day. F. Order Fulfiller — the party, either Vendor or a party that may be designated by Vendor, who is fulfilling a Purchase Order pursuant to the Contract. G. Purchase Order - the Customer's fiscal form or format, which is used when making a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase Order, or other authorized instrument). H. State — refers to the State of Texas. 4. General Provisions A. Entire Agreement The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained in the Contract, Appendices, or its Exhibits shall be binding or valid. B. Modification of Contract Terms and/or Amendments 1) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract. The Contract may only be modified or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms of the Contract; however, additional Customer terms and conditions that do not conflict with the Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and given effect. No additional term or condition added in a Purchase Order issued by a Customer can conflict with or diminish a term or condition of the Contract. Pre-printed terms and conditions on any Purchase Order issued by Customer hereunder will have no force and effect. In the event of a conflict between a Customer's Purchase Order and the Contract, the Contract term shall control. 3) Customers and Vendor will negotiate and enter into written agreements regarding statements of work, service level agreements, remedies, acceptance criteria, information confidentiality and security requirements, and other terms specific to their Purchase Orders under the Contract with Vendors. 06/21/2016 Page 2 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 C. Invalid Term or Condition 1) To the extent any term or condition in the Contract conflicts with the applicable State and/or United States law or regulation, such Contract term or condition is void and unenforceable. By executing a contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of such term or condition and DIR does not waive the applicable State and/or United States law or regulation which conflicts with the Contract term or condition. 2) If one or more terms or conditions in the Contract, or the application of any term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances shall remain valid and in full force and effect. D. Assignment DIR or Vendor may assign the Contract without prior written approval to: i) a successor in interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority. Assignment of the Contract under the above terms shall require written notification by the assigning party and, for Vendor, a mutually agreed written Contract amendment. Any other assignment by a party shall require the written consent of the other party and a mutually agreed written Contract amendment. E. Survival All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract All Purchase Orders issued and accepted by Vendor or Order Fulfiller shall survive expiration or termination of the Contract for the term of the Purchase Order, unless the Customer terminates the Purchase Order sooner. However, regardless of the term of the Purchase Order, no Purchase Order shall survive the expiration or termination of the Contract for more than -five years, unless Customer makes an express finding and justification for the longer term. The finding and justification must either be included in the Purchase Order, or referenced in it and maintained in Customer's procurement record. Rights and obligations under this Contract which by their nature should survive, including, but not limited to the DIR Administrative Fee; and any and all payment obligations invoiced prior to the termination or expiration hereof, obligations of confidentiality; and, indemnification, will remain in effect after termination or expiration hereof. F. Choice of Law The laws of the State shall govern the construction and interpretation of the Contract. Exclusive venue for all actions will be in state court, Travis County, Texas. Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign immunity. 06/21/2016 Page 3 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 G. Limitation of Authority Vendor shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State except as expressly provided for in this Contract; no other authority, power or use is granted or implied. Vendor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State or DIR. H. Proof of Financial Stability Either DIR or Customer may require Vendor to provide proof of financial stability prior to or at any time during the contract term. Intellectual Property Matters 5. Intellectual Property Matters A. Definitions 1)" Work Product" means any and all deliverables produced by Vendor for Customer under a Statement of Work issued pursuant to this Contract, including any and all tangible or intangible items or things that have been or will be prepared, created, developed, invented or conceived at any time following the effective date of the Contract, including but not limited to any (i) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, object code, source code or other programming code, HTML code, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works), (ii) trademarks, service marks, trade dress, trade names, logos, or other indicia of source or origin, (iii) ideas, designs, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv) domain names, (v) any copies, and similar or derivative works to any of the foregoing, (vi) all documentation and materials related to any of the foregoing, (vii) all other goods, services or deliverables to be provided to Customer under the Contract or a Statement of Work, and (viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of Customer in connection with this Contract or a Statement of Work, or with funds appropriated by or for Customer or Customer's benefit: (a) by any Vendor personnel or Customer personnel, or (b) any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction - to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. 2) "Intellectual Property Rights" means the worldwide legal rights or interests evidenced by or embodied in: (1) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations; 06/21/2016 Page 4 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 and (v) any other proprietary or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses. 3) "Statement of Work" means a document signed by Customer and Vendor describing a specific set of activities and/or deliverables, which may include Work Product and Intellectual Property Rights, that Vendor is to provide Customer, issued pursuant to the Contract. 4) "Third Party IP" means the Intellectual Property Rights of any third party that is not a party to this Contract, and that is not directly or indirectly providing any goods or services to Customer under this Contract. 5) "Vendor IP" shall mean all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Vendor (a) prior to providing any Services or Work Product to Customer and prior to receiving any documents, materials, information or funding from or on behalf of Customer relating to the Services or Work Product, or (b) after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Vendor outside Vendor's provision of Services or Work Product for Customer hereunder and were not created, prepared, developed, invented or conceived by any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction -to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. B. Ownership. As between Vendor and Customer, the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by Customer, and not Vendor. Vendor specifically agrees that the Work Product shall be considered "works made for hire" and that the Work Product shall, upon creation, be owned exclusively by Customer. To the extent that the Work Product, under applicable law, may not be considered works made for hire, Vendor hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to Customer all right, title and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and Customer shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Vendor acknowledges that Vendor and Customer do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. Customer shall have access, during normal business hours (Monday through Friday, 8AM to 5PM) and upon reasonable prior notice to Vendor, to all Vendor materials, premises and computer files containing the Work Product. Vendor and Customer, as appropriate, will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein. No license or other right is granted hereunder to any Third Party TP, except as may be incorporated in the Work Product by Vendor. 06/21/2016 Page 5 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 C. Further Actions. Vendor, upon request and without further consideration, shall perform any acts that may be deemed reasonably necessary or desirable by Customer to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to Customer to the fullest extent possible, including but not limited to the execution, acknowledgement and delivery of such further documents in a form determined by Customer. In the event Customer shall be unable to obtain Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable failure to respond to Customer's repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Vendor hereby irrevocably designates and appoints Customer and its duly authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to act for and in Vendor's behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Vendor, provided however that no such grant of right to Customer is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. Customer shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor shall cooperate, at Customer's sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product. D. Waiver of Moral Rights. Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Vendor may now have or which may accrue to Vendor's benefit under U.S. or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term "Moral Rights" shall mean any and all rights of paternity or integrity of the Work Product and the right to object to any modification, translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right. E. Confidentiality. All documents, information and materials forwarded to Vendor by Customer for use in and preparation of the Work Product shall be deemed the confidential information of Customer, and subject to the license granted by Customer to Vendor under sub -paragraph H. hereunder. Vendor shall not use, disclose, or permit any person to use or obtain the Work Product, or any portion thereof, in any manner without the prior written approval of Customer. F. Injunctive Relief. The Contract is intended to protect Customer's proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein, and any misuse of such rights would cause substantial and irreparable harm to Customer's business. Therefore, Vendor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property, use, and confidentiality provisions of this 06/21/2016 Page 6 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Contract, upon a request by Customer, without requiring proof of irreparable injury as same should be presumed. G. Return of Materials Pertaining to Work Product. Upon the request of Customer, but in any event upon termination or expiration of this Contract or a Statement of Work, Vendor shall surrender to Customer all documents and things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Vendor or furnished by Customer to Vendor, including all materials embodying the Work Product, any Customer confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This section is intended to apply to all Work Product as well as to all documents and things furnished to Vendor by Customer or by anyone else that pertain to the Work Product. H. Vendor License to Use. Customer hereby grants to Vendor a non -transferable, non-exclusive, royalty -free, fully paid-up license to use any Work Product solely as necessary to provide the Services to Customer. Except as provided in this Section, neither Vendor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer, which consent may be withheld in Customer's sole discretion. I. Third -Party Underlying and Derivative Works. To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work Product, or are necessary to provide the Services, Vendor hereby grants to the Customer, or shall obtain from the applicable third party for Customer's benefit, the irrevocable, perpetual, non-exclusive, worldwide, royalty -free right and license, for Customer's internal business purposes only, to (i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such Vendor IP or Third Party IP and any derivative works thereof embodied in or delivered to Customer in conjunction with the Work Product, and (ii) authorize others to do any or all of the foregoing. Vendor agrees to notify Customer on delivery of the Work Product or Services if such materials include any Third Party IP. On request, Vendor shall provide Customer with documentation indicating a third party's written approval for Vendor to use any Third Party IP that may be embodied or reflected in the Work Product. J. Agreement with Subcontracts. Vendor agrees that it shall have written agreement(s) that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any employees, agents, consultants, contractors or subcontractors providing Services or Work Product pursuant to the Contract, prior to their providing such Services or Work Product, and that it shall maintain such written agreements at all times during performance of this Contract, which are sufficient to support all performance and grants of rights by Vendor. Copies of such agreements shall be provided to the Customer promptly upon request. 06/21/2016 Page 7 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 K. License to Customer. Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the Customer's internal business purposes, to use, copy, modify, display, perform (by any means), transmit and prepare derivative works of any Vendor IP embodied in or delivered to Customer in conjunction with the Work Product. The foregoing license includes the right to sublicense third parties, solely for the purpose of engaging such third parties to assist or carryout Customer's internal business use of the Work Product. Except for the preceding license, all rights in Vendor IP remain in Vendor. L. Vendor Development Rights. To the extent not inconsistent with Customer's rights in the Work Product or as set forth herein, nothing in this Contract shall preclude Vendor from developing for itself, or for others, materials which are competitive with those produced as a result of the Services provided hereunder, provided that no Work Product is utilized, and no Intellectual Property Rights of Customer therein are infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights of Customer therein in order to offer competitive goods or services to third parties, Vendor and Customer agree to negotiate in good faith regarding an appropriate license and royalty agreement to allow for such. 6. Product Terms and Conditions Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED A. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapters 206 and 213 (Applicable to State Agency and Institution of Higher Education Purchases Only) 1) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which comply with the State Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapters 206 and 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. 2) Upon request, but not later than thirty (30) calendar days after request, Vendor shall provide DIR with a completed Voluntary Product Accessibility Template (VPAT) of the specified product or a URL to the VPAT for reviewing compliance with the State Accessibility requirements (based on the federal standards established under Section 508 of the Rehabilitation Act). B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 1) Texas Government Code, §2157.068 requires State agencies to buy commodity items, as defined in 6.13.2, below, in accordance with contracts developed by DIR, unless the agency obtains an exemption from DTR or a written certification that a commodity is not on DIR contract (for the limited purpose of purchasing from a local government purchasing cooperative). 2) Commodity items are commercially available software, hardware and technology services that are generally available to businesses or the public and for which DIR determines that a reasonable demand exists in two or more state agencies. Hardware is 06/21/2016 Page 8 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 the physical technology used to process, manage, store, transmit, receive or deliver information. Software is the commercially available programs that operate hardware and includes all supporting documentation, media on which the software may be contained or stored, related materials, modifications, versions, upgrades, enhancements, updates or replacements. Technology services are the services, functions and activities that facilitate the design, implementation, creation, or use of software or hardware. Technology services include seat management, staffing augmentation, training, maintenance and subscription services. Technology services do not include telecommunications services. Seat management is services through which a state agency transfers its responsibilities to a vendor to manage its personal computing needs, including all necessary hardware, software and technology services. 3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR contracts. Institutions of higher education are exempt from this Subsection 6.13. 7. Contract Fulfillment and Promotion A. Service, Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for products and services available under the Contract shall be processed through the Contract. B. Use of Order Fulfillers DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and support resources to Customers. Such participation is subject to the following conditions: 1) Designation of Order Fulfillers a) Vendor may designate Order Fulfillers to act as the distributors for products and services available under the Contract. In designating Order Fulfillers, Vendor must be in compliance with the State's Policy on Utilization of Historically Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor shall provide DIR with the following Order Fulfiller information: Order Fulfiller name, Order Fulfiller business address, Order Fulfiller CPA Identification Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller participation or request that Vendor name additional Order Fulfillers should DIR determine it is in the best interest of the State. c) Vendor shall be fully liable for its Order Fulfillers' performance under and compliance with the terms and conditions of the Contract. Vendor shall enter into contracts with Order Fulfillers and use terms and conditions that are consistent with the terms and conditions of the Contract. d) Vendor shall have the right to qualify Order Fulfillers and their participation under the Contract provided that: i) any criteria is uniformly applied to all potential Order Fulfillers based upon Vendor's established, neutrally applied criteria, ii) the 06/21/2016 Page 9 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 criteria is not based on a particular procurement, and iii) all Customers are supported under the different criteria. e) Vendor shall not prohibit Order Fulfiller from participating in other procurement opportunities offered through DIR. 2) Changes in Order Fulfiller List Vendor may add or delete Order Fulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor must make a good faith effort in the revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide DIR with its updated Subcontracting Plan and the Order Fulfiller information listed in Section 7.B. La above. 3) Order Fulfiller Pricing to Customer Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within Appendix A, Section 8, Pricing, Purchase Orders, Invoices and Payment, and as set forth in Appendix C, Pricing Index, and shall include the DIR Administrative Fee. This pricing shall only be offered by Order Fulfillers to Customers for sales that pass through the Contract. C. Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then -currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. D. Customer Site Preparation Customers shall prepare and maintain its site in accordance with written instructions furnished by Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. E. Internet Access to Contract and Pricing Information 1) Vendor Webpage Within thirty (30) calendar days of the effective date of the Contract, Vendor will establish and maintain a webpage specific to the products and services awarded under the Contract that are clearly distinguishable from other, non-DIR Contract offerings on the Vendor's website. The webpage must include: a) the products and services awarded; b) description of product and service awarded c) a current price list or mechanism (for example, a services calculator or product builder) to obtain specific contracted pricing; d) discount percentage (%) off MSRP or List Price; e) designated Order Fulfillers; f) contact information (name, telephone number and email address) for Vendor and designated Order Fulfillers; 06/21/2016 Page 10 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 g) instructions for obtaining quotes and placing Purchase Orders; h) warranty policies; i) return policies; J ) the DIR Contract number with a hyperlink to the Contract's DIR webpage; k) a link to the DIR "Cooperative Contracts" webpage; and 1) the DIR logo in accordance with the requirements of this Section. If Vendor does not meet the webpage requirements listed above, DIR may cancel the contract without penalty. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted, maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non- conforming or inaccurate information posted at Vendor's website within ten (10) business days after written notification by DIR. 3) Webpage Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's webpage will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable documentation that pricing listed upon this webpage is compliant with the pricing as stated in the Contract. 4) Webpage Changes Vendor hereby consents to a link from the DIR website to Vendor's webpage in order to facilitate access to Contract information. The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to suspend, terminate or remove a link at any time, in its sole discretion, without advance notice, or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link suspension, termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. 5) Use of Access Data Prohibited If Vendor stores, collects or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract and shall not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website. DIR reserves the right to require a change of listed content if, in the opinion of DIR, it does not adequately represent the Contract. 06/21/2016 Page 11 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 F. DIR Logo Vendor and Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with the following stipulations: (i) the logo may not be modified in any way, (ii) when displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo, (iii) the DIR logo is only used to communicate the availability of products and services under the Contract to Customers, and (iv) any other use of the DIR logo requires prior written permission from DIR. G. Vendor and Order Fulfiller Logo If DIR receives Vendor's or Order Fulfiller's prior written approval, DIR may use the Vendor's and Order's Fulfiller's name and logo in the promotion of the Contract to communicate the availability of products and services under the Contract to Customers. Use of the logos may be on the DIR website or on printed materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely related to the purposes of the Contract and any usage guidelines communicated to DIR from time to time. Nothing contained in the Contract will give DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by Vendor and Order Fulfiller. H. Trade Show Participation At DIR's discretion, Vendor and Order Fulfillers may be required to participate in no more than two DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned booth display or similar presence. DIR will provide four months advance notice of any required participation. Vendor and Order Fulfillers must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's or Order Fulfiller's booth. I. Orientation Meeting Within thirty (30) calendar days from execution of the Contract, Vendor and Order Fulfillers will be required to attend an orientation meeting to discuss the content and procedures of the Contract to include reporting requirements. DIR, at its discretion, may waive the orientation requirement for Vendors who have previously held DIR contracts. The meeting will be held in the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor or by teleconference, at DIR's discretion. DIR shall bear no cost for the time and travel of the Vendor or Order Fulfillers for attendance at the meeting. J. Performance Review Meetings DIR will require the Vendor to attend periodic meetings to review the Vendor's performance under the Contract. The meetings will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor or by teleconference, at DIR's discretion. DIR shall bear no cost for the time and travel of the Vendor for attendance at the meeting. K. DIR Cost Avoidance As part of the performance measures reported to state leadership, DIR must provide the cost avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall provide DIR with a detailed report of a representative sample of products sold under the 06/21/2016 Page 12 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Contract. The report shall contain: product part number, product description, list price and price to Customer under the Contract. 8. Pricing, Purchase Orders, Invoices, and Payments Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED A. Manufacturer's Suggested Retail Price (MSRP) or List Price Note: NO EXCEPTIONS 01M^,tlp"MdONS WHA. BE C ONSHIUREID MSRP is defined as the product sales price list published in some form by the manufacturer or publisher of a product and available to and recognized by the trade. A price list especially prepared for a given solicitation is not acceptable. B. Customer Discount Note: NO EXCEPTIONS 01ll� WHA. BE C ONSHIUREID The minimum Customer discount for all products and services will be the percentage off MSRP as specified in Appendix C, Pricing Index. C. Customer Price Note: NO E'NCE'11ll IONS OR >CI^,tIp ilONS WHA. BF CONSIDERED 6'M S11JICCTION (A 1) The price to the Customer shall be calculated as follows: Customer Price = (MSRP or List Price — Customer Discount as set forth in Appendix C, Pricing Index) x (1 + DIR Administrative Fee, as set forth in the Contract). 2) Customers purchasing products and services under this Contract may negotiate more advantageous pricing or participate in special promotional offers. In such event, a copy of such better offerings shall be furnished to DIR upon request. 3) If pricing for products or services available under this Contract is provided by the Vendor at a lower price to: (i) an eligible Customer who is not purchasing those products or services under this Contract or (ii) to any other customer under the same terms and conditions provided for the State for the same commodities and services under this contract, then the available Customer Price in this Contract shall be adjusted to that lower price. This requirement applies to products or services quoted by Vendor or its resellers for a quantity of one (1) under like terms and conditions, and does not apply to volume or special pricing purchases. Vendor shall notify DIR within ten (10) days and this Contract shall be amended to reflect the lower price. D. Shipping and Handling Fees Note: NO EXCEPTIONS OR REVISIONS WILL BE C OINSCIIIERED The price to the Customer under this Contract shall include all shipping and handling fees. Shipments will be Free On Board Customer's Destination. No additional fees shall be charged to the Customer for standard shipping and handling. If the Customer requests expedited or special delivery, Customer will be responsible for any charges for expedited or special delivery. 06/21/2016 Page 13 of 3 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 E. Tax -Exempt Na tc: NO EXCEPIFIONS OR REVISIONS 113 � BE CONSIDERED D As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the assessment of State sales, use and excise taxes. Further, Customers under this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections 4253(1) and 0). Customers shall provide evidence of tax-exempt status to Vendor upon request. F. Travel Expense Reimbursement Note: NO III A"ET III llONS OR, REVISIONS WILL BE CONSIDERED Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by Customers shall not exceed the amounts authorized for state employees as adopted by each Customer; and provided, further, that all reimbursement rates shall not exceed the maximum rates established for state employees under the current State Travel Management Program (http://www.window.state.tx.us/procurement/pro /g stmp//). Travel time may not be included as part of the amounts payable by Customer for any services rendered under this Contract. The DIR administrative fee specified in the Contract is not applicable to travel expense reimbursement. Anticipated travel expenses must be pre -approved in writing by Customer. Customer reserves the right not to pay travel expenses which are not pre -approved in writing by the Customer. G. Changes to Prices Subject to the requirements of this section, Vendor may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Vendor may revise its pricing (but not its discount rate, if any, and not the products or services on its contract pricing list) by posting a revised pricing list. Such revised pricing lists are subject to review by DIR. If DIR finds that a product's or service's price has been increased unreasonably, DIR may request Vendor to reduce its pricing for the product or service to the level published before the revision. Vendor must reduce its pricing, or remove the product from its pricing list. Failure to do so will constitute an act of default by Vendor. H. Purchase Orders Note: NO VAC14,11 DI'glONS OR RIWiISl101NS WILL Bf, COlNSIIMAMD All Customer Purchase Orders will be placed directly with the Vendor or Order Fulfiller. Accurate Purchase Orders shall be effective and binding upon Vendor or Order Fulfiller when accepted by Vendor or Order Fulfiller. Customer and Vendor may work together to include specific requirements as to what constitutes a valid Purchase Order. Vendors will be required to comply with the disclosure requirements of Section 2252.908, Texas Government Code, as enacted by House Bill 1295, 84"' Regular 06/21/2016 Page 14 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Session, when execution of a contract requires an action or vote by the governing body of a governmental entity before the contract may be signed. I. Invoices No(e: NO ENCEF III llONS OR,, REVISIONS llf A.� 13E� CONStDEMI[aA) 1) Invoices shall be submitted by the Vendor or Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251, Texas Government Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Vendor or Order Fulfiller. For Customers that are not subject to Chapter 2251, Texas Government Code, Customer and Vendor will agree to acceptable terms. 2) Invoices must be timely and accurate. Each invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to products, prices and quantities. Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. 3) The administrative fee as set forth in the Contract shall not be broken out as a separate line item when pricing or invoice is provided to Customer. J. Payments Note: NO t+.'CaEPDL`tONS Olt 1?t+.VISIONS WII J BE CONSIDERED Customers shall comply with Chapter 2251, Texas Government Code, in making payments to Order Fulfiller. The statute states that payments for goods and services are due thirty (30) calendar days after the goods are provided, the services completed, or a correct invoice is received, whichever is later. Payment under the Contract shall not foreclose the right to recover wrongful payments. For Customers that are not subject to Chapter 2251, Texas Government Code, Customer and Vendor will agree to acceptable terms. 9. Contract Administration No(c: NO F. CEaPOC'IONS 011 REVISIONS WILL BE t;ONSIDllFAU'D FOR A.,C-D A. Contract Managers Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED DIR and the Vendor will each provide a Contract Manager to support the Contract. Information regarding the Contract Manager will be posted on the Internet website designated for the Contract. 1) State Contract Manager DIR shall provide a Contract Manager whose duties shall include but not be limited to: I) advising DIR and Vendor of Vendor's compliance with the terms and conditions of the Contract, ii) periodic verification of product pricing, and iii) verification of monthly reports submitted by Vendor. 2) Vendor Contract Manager Vendor shall identify a specific Contract Manager whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) 06/21/2016 Page 15 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 facilitating dispute resolution between a Order Fulfiller and a Customer, and iii) advising DIR of Order Fulfillers performance under the terms and conditions of the Contract. DIR reserves the right to require a change in Vendor's then -current Contract Manager if the assigned Contract Manager is not, in the reasonable opinion of DIR, adequately serving the needs of the State. B. Reporting and Administrative Fees 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased through Vendor and Order Fulfillers under the Contract. Vendor shall file the monthly reports, subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to compliance checks of Vendor's applicable Contract. Vendor will provide all required documentation at no cost. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by DIR showing the dollar volume of any and all sales under the Contract for the previous calendar month period. Reports shall be submitted to the DIR Cooperative Contracts E -Mail Box at let. sales kdir.texas. gov. Reports are due on the fifteenth (15a') calendar day after the close of the previous month period. If the 15" calendar day falls on a weekend or state or federal holiday, the report shall be due on the next business day. The monthly report shall include, per transaction: the detailed sales for the period, Customer name, invoice date, invoice number, description, quantity, MSRP or List Price, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the administrative fee due for the reporting period, subcontractor name, EPEAT designation (if applicable), configuration (if applicable), contract discount percentage, actual discount percentage, negotiated contract price (if fixed price is offered in stead of discount off of MSRP), and other information as required by DIR. Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. Vendor shall report in a manner required by DIR which is subject to change dependent upon DIR's business needs. Failure to do so may result in contract termination. 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with Vendor's relevant Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161, Texas Government Code. Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating, executing, and administering the Contract. The maximum administrative fee is set by the Texas Legislature in the biennial General 06/21/2016 Page 16 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Appropriations Act. Payment of the administrative fee shall be due on the fifteenth (15t) calendar day after the close of the previous month period. DIR may change the amount of the administrative fee upon thirty (30) calendar days written notice to Vendor without the need for a formal contract amendment. b) Vendor shall reference the DIR Contract number, reporting period, and administrative fee amount on any remittance instruments. 5) Accurate and Timely Submission of Reports a) The reports and administrative fees shall be accurate and timely and submitted in accordance with the due dates specified in this section. Vendor shall correct any inaccurate reports or administrative fee payments within three (3) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within three (3) business days upon written notification by DIR. If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three (3) business days, Vendor must contact DIR and provide a corrective plan of action, including the timeline for completion of correction. The corrective plan of action shall be subject to DIR approval. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and payments within the corrective plan of action timeline, DIR reserves the right to require an independent third party audit of the Vendor's records as specified in C.3 of this Section, at Vendor's expense. DIR will select the auditor (and all payments to auditor will require DIR approval). c) Failure to timely submit three (3) reports or administrative fee payments within any rolling twelve (12) month period may, at DIR's discretion, result in the addition of late fees of $100/day for each day the report or payment is due (up to $1000/month) or suspension or termination of Vendor's Contract. C. Records and Audit Note: NO E:d"E11 III ll[Ol^ S Olt REVISIONS \vILA� BE CONSIDERED IN SUBPARAGRAII'll ONE (l) 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office, or any successor agency or designee, to conduct an audit or investigation in connection with those funds. Vendor further agrees to cooperate fully with the State Auditor's Office or its successor or designee in the conduct of the audit or investigation, including providing all records requested. Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requirement to cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the State Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of seven (7) years after termination of the Contract or until full, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall 06/21/2016 Page 17 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 include per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, MSRP or list price, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the calculations supporting each administrative fee owed DIR under the Contract, Historically Underutilized Businesses Subcontracting reports, and such other documentation as DIR may request. 3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books, documents, accounting procedures, practices, customer records including but not limited to contracts, agreements, purchase orders and statements of work, and any other items relevant to the performance of the Contract to the DIR Internal Audit department or DIR Contract Management staff, including the compliance checks designated by the DIR Internal Audit department, DIR Contract Management staff, the State Auditor's Office, and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shall provide copies and printouts requested by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10) business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records, whether paper or electronic, shall be made available during regular office hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall be available to the DIR Internal Audit department, or DIR Contract Management staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to DIR staff during the performance of Compliance Check. If Vendor is found to be responsible for inaccurate reports, DIR may invoice for the reasonable costs of the audit, which Vendor must pay within thirty (30) calendar days of receipt. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the volume of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's administrative fee is correct. D. Contract Administration Notification 1) Prior to execution of the Contract, Vendor shall provide DIR with written notification of the following: i) Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information, and iii) name and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract, DIR shall provide Vendor with written notification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR Cooperative Contracts E -Mail Box information. 10. Vendor Responsibilities Note: 06/21/2016 Page 18 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 A. Indemnification 1) INDEPENDENT CONTRACTOR VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF TEXAS. 2) ACTS OR OMISSIONS Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. 3) INFRINGEMENTS a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. b) Vendor shall have no liability under this section if the alleged infringement is caused in whole or in part by: (i) use of the product or service for a purpose or in a manner for which the product or service was not designed, (ii) any modification made to the product without Vendor's written approval, (iii) any modifications made to the product by the Vendor pursuant to Customer's specific instructions, (iv) any intellectual property right owned by or licensed to Customer, or (v) any 06/21/2016 Page 19 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 use of the product or service by Customer that is not in conformity with the terms of any applicable license agreement. e) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non -infringing. 4) PROPERTY DAMAGE IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF CUSTOMER OR THE STATE DUE TO THE NEGLIGENCE, MISCONDUCT, WRONGFUL ACT OR OMISSION ON THE PART OF THE VENDOR, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, THE VENDOR SHALL PAY THE FULL COST OF EITHER REPAIR, RECONSTRUCTION, OR REPLACEMENT OF THE PROPERTY, AT THE CUSTOMER'S SOLE ELECTION. SUCH COST SHALL BE DETERMINED BY THE CUSTOMER AND SHALL BE DUE AND PAYABLE BY THE VENDOR NINETY (90) CALENDAR DAYS AFTER THE DATE OF THE VENDORS RECEIPT FROM THE CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE. B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. 2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR ASSTGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR 06/21/2016 Page 20 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. C. Vendor Certifications Note: NO ECEF III llONS OR, REVISIONS WlllLL 13E[ CONSIDEMlllD Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they: (i) have not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract; (ii) are not currently delinquent in the payment of any franchise tax owed the State and are not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate; (iii) neither they, nor anyone acting for them, have violated the antitrust laws of the United States or the State, nor communicated directly or indirectly to any competitor or any other person engaged in such line of business for the purpose of obtaining an unfair price advantage; (iv) have not received payment from DIR or any of its employees for participating in the preparation of the Contract; (v) under Section 2155.004, Texas Government Code, the vendor certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate; (vi) to the best of their knowledge and belief, there are no suits or proceedings pending or threatened against or affecting them, which if determined adversely to them will have a material adverse effect on the ability to fulfill their obligations under the Contract; (vii) Vendor and its principals are not suspended or debarred from doing business with the federal government as listed in the System fbr Award Management (SAM) maintained by the General Services Administration; (viii) as of the effective date of the Contract, are not listed in the prohibited vendors list authorized by Executive Order # 13224, 'Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control; (ix) Vendor represents and warrants that, for its performance of this contract, it 06/21/2016 Page 21 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 shall purchase products and materials produced in the State of Texas when available at the price and time comparable to products and materials produced outside the state, to the extent that such is required under Texas Government Code, Section 2155.4441; (x) agrees that all equipment and materials used in fulfilling the requirements of this contract are of high-quality and consistent with or better than applicable industry standards, if any. All Works and Services performed pursuant to this Contract shall be of high professional quality and workmanship and according consistent with or better than applicable industry standards, if any; (xi) to the extent applicable to this scope of this Contract, Vendor hereby certifies that it is in compliance with Subchapter Y, Chapter 361, Health and Safety Code related to the Computer Equipment Recycling Program and its rules, 30 TAC Chapter 328; (xii) agree that any payments due under this contract will be applied towards any debt, including but not limited to delinquent taxes and child support that is owed to the State of Texas; (xiii) are in compliance Section 669.003, Texas Government Code, relating to contracting with executive head of a state agency; (xiv) represent and warrant that the provision of goods and services or other performance under the Contract will not constitute an actual or potential conflict of interest and certify that they will not reasonably create the appearance of impropriety, and, if these facts change during the course of the Contract, certify they shall disclose the actual or potential conflict of interest and any circumstances that create the appearance of impropriety; (xv) under Section 2155.006, and Section 2261.053, Texas Government Code, are not ineligible to receive the specified contract and acknowledge that this contract may be terminated and payment withheld if this certification is inaccurate; (xvi) have complied with the Section 556.0055, Texas Government Code, restriction on lobbying expenditures. In addition, they acknowledge the applicability of §2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract; and (xvii) represent and warrant that the Customer's payment and their receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008, Texas Government Code. During the term of the Contract, Vendor shall, for itself and on behalf of its Order Fulfillers, promptly disclose to DIR all changes that occur to the foregoing certifications, representations and warranties. Vendor covenants to fully cooperate in the development and execution of resulting documentation necessary to maintain an accurate record of the certifications, representations and warranties. In addition, Vendor understands and agrees that if Vendor responds to certain Customer pricing requests or Statements of Work, then, in order to contract with 06/21/2016 Page 22 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 the Customer, Vendor may be required to comply with additional terms and conditions or certifications that an individual customer may require due to state and federal law (e.g., privacy and security requirements). D. Ability to Conduct Business in Texas Notc: NO EXCEPTIONS OR REVISIONS WH SIC, BE CONSIDERED Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of its state of organization, and shall be authorized to do business in the State of Texas in accordance with Texas Business Organizations Code, Title 1, Chapter 9. E. Equal Opportunity Compliance Note: NO, EA1 EP°TIONS OR REVISIONS W11.1, BE CONSIDERED Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including federal laws and the laws of the State in which its primary place of business is located. In accordance with such laws, regulations, and executive orders, the Vendor agrees that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract. If Vendor is found to be not in compliance with these requirements during the term of the Contract, Vendor agrees to take appropriate steps to correct these deficiencies. Upon request, Vendor will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision-making authority. F. Use of Subcontractors Note: NO EXCEPTIONS OR REVISIONS WILL 1;3E CONSIDERED If Vendor uses any subcontractors in the performance of this Contract, Vendor must make a good faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses (HUB). A revised Subcontracting Plan approved by DIR's HUB Office shall be required before Vendor can engage additional subcontractors in the performance of this Contract. A revised Subcontracting Plan approved by DIR's HUB Office shall be required before Vendor can remove subcontractors currently engaged in the performance of this Contract. Vendor shall remain solely responsible for the performance of its obligations under the Contract. G. Responsibility for Actions Note: NO EXCEPTIONS OR REVISIONS WILL 1;3E CONSIDERED 1) Vendor is solely responsible for its actions and those of its agents, employees, or subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority to act or speak on behalf of DIR or the State. 2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly when the disclosures under Certification Statement of Exhibit A to the RFO and/or Section l O.C. (xiii), Vendor Certifications of this Appendix A to the Contract change. Vendor covenants to fully cooperate with DIR to update and amend the Contract to accurately disclose the status of conflicts of interest. 06/21/2016 Page 23 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 H. Confidentiality Note,: NEED EXCEPTIONS OR REVISIONS Wil J, BE CONSIDERED D 1) Vendor acknowledges that DIR and Customers that are governmental bodies as defined by Texas Government Code, Section 552.003 are subject to the Texas Public Information Act. Vendor also acknowledges that DIR and Customers that are governmental bodies will comply with the Public Information Act, and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to any party in any manner. I. Security of Premises, Equipment, Data and Personnel Note: NO, EAE'EPTIONS OR REVISIONS W11.1, BE. E"O1"'wLSIDI�a",���.EM Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equipment, and other property, including data, files and /or materials (collectively referred to as "Data") belonging to the Customer. Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety, security, and the integrity of the personnel, premises, equipment, Data and other property of the Customer, in accordance with the instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller fails to comply with Customer's security requirements, then Customer may immediately terminate its Purchase Order and related Service Agreement. J. Background and/or Criminal History Investigation Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Prior to commencement of any services, background and/or criminal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing services to the Customer under the Contract may be performed by the Customer.. Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check, then Customer may immediately terminate its Purchase Order and related Service Agreement or request replacement of the employee or subcontractor in question. K. Limitation of Liability :ate: NO EXCEPTIONS OR EEEa: "ESEO S WILL Bf, E'EE�NSEEEuEa;EU4,I) For any claims or cause of action arising under or related to the Contract: i) to the extend permitted by the Constitution and the laws of the State, none of the parties shall be liable to the other for punitive, special, or consequential damages, even if it is advised of the possibility of such damages; and ii) Vendor's liability for damages of any kind to the Customer shall be limited to the total amount paid to Vendor under the Contract during the twelve months immediately preceding the accrual of the claim or cause of action. However, this limitation of Vendor's liability shall not apply to claims of bodily injury; violation of intellectual property rights including but not limited to patent, trademark, or copyright infringement; indemnification requirements under this Contract; and violation of State or Federal law including but not limited to disclosures of confidential information and any penalty of any kind lawfully assessed as a result of such violation. 06/21/2016 Page 24 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 L. Overcharges Note,: NO EXCEPTIONS OR REVISIONS rll>n J. BE CONSIDERED Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section 15.01, et seq. M. Prohibited Conduct Note,: NO EXCEPTIONS OR REVISIONS rll>n J. BE CONSIDERED Vendor represents and warrants that, to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfiller, subcontractor, firm corporation, partnership, or institution represented by Vendor, nor anyone acting for such Order Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal antitrust laws; or (2) communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract. N. Required Insurance Coverage As a condition of this Contract with DIR, Vendor shall provide the listed insurance coverage within 5 business days of execution of the Contract if the Vendor is awarded services which require that Vendor's employees perform work at any Customer premises and/or use employer vehicles to conduct work on behalf of Customers. In addition, when engaged by a Customer to provide services on Customer premises, the Vendor shall, at its own expense, secure and maintain the insurance coverage specified herein, and shall provide proof of such insurance coverage to the related Customer within five (5) business days following the execution of the Purchase Order. Vendor may not begin performance under the Contract and/or a Purchase Order until such proof of insurance coverage is provided to, and approved by, DIR and the Customer. All required insurance must be issued by companies that have an A rating and a Financial Size Category Class of VII from A.M. Best and are licensed in the State of Texas and authorized to provide the corresponding coverage. The Customer and DIR will be named as Additional Insureds on all required coverage. Required coverage must remain in effect through the term of the Contract and each Purchase Order issued to Vendor there under. The minimum acceptable insurance provisions are as follows: 1) Commercial General Liability Commercial General Liability must include $1,000,000 per occurrence for Bodily Injury and Property Damage, with a separate aggregate limit of $2,000,000; Medical Expense per person of $5,000; Personal Injury and Advertising Liability of $1,000,000; Products/Completed Operations Aggregate Limit of $2,000,000; and Damage to Premises Rented: $50,000. Agencies may require additional Umbrella/Excess Liability insurance. The policy shall contain the following provisions: a) Blanket contractual liability coverage for liability assumed under the Contract; b) Independent Contractor coverage; c) State of Texas, DIR and Customer listed as an additional insured; and d) Waiver of Subrogation 06/21/2016 Page 25 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 2) Workers' Compensation Insurance WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS' COMPENSATION ACT (ART. 8308-1.01 ET SEQ. TEX. REV. CIV. STAT) AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT, $1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND $1,000,000 PER DISEASE POLICY LIMIT. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non -owned and hired vehicles with a minimum combined single limit of $500,000 per occurrence for bodily injury and property damage. The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Waiver of Subrogation; and b) Additional Insured. O. Use of State Property Note: NO EXCEPTIONS OR RRVISIONS S WILL RV, CONSIDlla;ID�U4,1) Vendor is prohibited from using the Customer's equipment, the customer's location, or any other resources of the Customer or the State for any purpose other than performing services under this Agreement. For this purpose, equipment includes, but is not limited to, copy machines, computers and telephones using State long distance services. Any charges incurred by Vendor using the Customer's equipment for any purpose other than performing services under this Agreement must be fully reimbursed by Vendor to the Customer immediately upon demand by the Customer. Such use shall constitute breach of contract and may result in termination of the contract and other remedies available to DIR and Customer under the contract and applicable law. P. Immigration planta^: NO lli+.i"MCEPT1ONS OR REVISIONS WILL 1;3E CONSIDERED The Vendor shall comply with all requirements related to federal immigration laws and regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the Immigration Act of 1990 (8 U.S.C.I101, et seq.) regarding employment verification and retention of verification forms for any individual(s) who will perform any labor or services under this Contract. Pursuant to Executive Order No. RP -80, issued by the Governor of Texas on December 3, 2014, and as subsequently clarified, the Vendor shall, as a condition of this Contract, also comply with the United States Department of Homeland Security's E -Verify system to determine the eligibility of: • all persons 1) to whom the E -Verify system applies, and 2) who are hired by the Vendor during the term of this Contract to perform duties within Texas; and 06/21/2016 Page 26 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 • all subcontractors' employees 1) to whom the E -Verify system applies, and 2) who are hired by the subcontractor during the term of this Contract and assigned by the subcontractor to perform work pursuant to this Contract. The Vendor shall require its subcontractors to comply with the requirements of this Section and the Vendor is responsible for the compliance of its subcontractors. Nothing herein is intended to exclude compliance by Vendor and its subcontractors with all other relevant federal immigration statutes and regulations promulgated pursuant thereto. Q. Public Disclosure Note: NO, EA1 EP°TIONS OR REVISIONS W11.1, BE CONSIDERED No public disclosures or news releases pertaining to this contract shall be made by Vendor without prior written approval of DIR. R. Product and/or Services Substitutions Note: NO 1i+.i"MW".EPTlllONS OR REVISIONS WILL BE CONSIDERED Substitutions are not permitted without the written permission of DM or Customer. S. Secure Erasure of Hard Disk Products and/or Services Note: NO 1i+.X1".EPTlllONS OR REVISIONS WILL BE CONSIDERED Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data written to the hard drive prior to final disposition of such products and/or services, either at the end of the Customer's Managed Services product's useful life or the end of the related Customer Managed Services Agreement for such products and/ services, in accordance with 1 TAC 202. T. Deceptive Trade Practices; Unfair Business Practices 1) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been (i) found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing, litigation or other proceeding. 2) Vendor certifies that it has no officers who have served as officers of other entities who (i) have been found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing, litigation or other proceeding. U. Drug Free Workplace Policy Vendor 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 Vendor shall comply with the 06/21/2016 Page 27 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. V. Accessiblity of Public Information Note: NO IE:XCEF IIFIIONS OR REVISIONS WILL 10>I'^. .ONS IDERED 1) Pursuant to S.B. 1368 of the 83'd Texas Legislature, Regular Session, Vendor is required to make any information created or exchanged with the State pursuant to this Contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State. 2) Each State government entity should supplement the provision set forth in Subsection 1, above, with the additional terms agreed upon by the parties regarding the specific format by which the Vendor is required to make the information accessible by the public. W. Vendor Reporting Requirements Note: NO EXCEPIFIONS OR REVISIONS WILL BECONSIDERED Vendor shall comply with Subtitle C, Title 5, Business & Commerce Code, Chapter 109 as added by HB 2539 of the 83"d Texas Legislature, Regular Session, requiring computer technicians to report images of child pornography. 11. Contract Enforcement Note: NO EX1".EP"V["lllONS OR REVISIONS WILL BE CONSIDER.ED IFF A, 11,12,5-7 A. Enforcement of Contract and Dispute Resolution Note: NO EXd"EII° III'IO S OR REVISIONS WILL BE CONSIDERED 1) Vendor and DIR agree to the following: (i) a party's failure to require strict performance of any provision of the Contract shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision, (ii) for disputes not resolved in the normal course of business, the dispute resolution process provided for in Chapter 2260, Texas Government Code, shall be used, and (iii) actions or proceedings arising from the Contract shall be heard in a state court of competent jurisdiction in Travis County, Texas. 2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with the dispute resolution process of the Customer that is not inconsistent with subparagraph A.1 above. DIR shall not be a party to any such dispute unless DIR, Customer, and Vendor agree in writing. 3) State agencies are required by rule (34 TAC §20.108(b)) to report vendor performance through the Vendor Performance Tracking System (VPTS) on every purchase over $25,000. B. Termination Note: NO EXCEPTIONS OR REVIIS111 SNS WILL BE CONSIDERED FOR 2, 5. 1) Termination for Non -Appropriation a) Termination for Non -Appropriation by Customer Customer may terminate Purchase Orders if funds sufficient to pay its obligations under the Contract are not appropriated: i) by the governing body on behalf of local governments; ii) by the Texas legislature on behalf of state agencies; or iii) by 06/21/2016 Page 28 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non - appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar days written notice of intent to terminate. Notwithstanding the foregoing, if a Customer issues a Purchase Order and has accepted delivery of the product or services, they are obligated to pay for the product or services or they may return the product and discontinue using services under any return provisions that Vendor offers. In the event of such termination, the Customer will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. b) Termination for Non -Appropriation by DIR DIR may terminate Contract if funds sufficient to pay its obligations under the Contract are not appropriated: by the i) Texas legislature or ii) by budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non -appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar days written notice of intent to terminate. In the event of such termination, DIR will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 2) Absolute Right Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED DIR shall have the absolute right to terminate the Contract without recourse in the event that: i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order #13224, 'Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism ", published by the United States Department of the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the System for Award Management (SAM) maintained by the General Services Administration; or (iii) Vendor is found by DIR to be ineligible to hold this Contract under Subsection (b) of Section 2155.006, Texas Government Code. Vendor shall be provided written notice in accordance with Section 12.A, Notices, of intent to terminate. 3) Termination for Convenience DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order or other contractual document or relationship by giving the other party thirty (30) calendar days written notice. 4) Termination for Cause a) Contract 06/21/2016 Page 29 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Either DIR or Vendor may issue a written notice of default to the other upon the occurrence of a material breach of any covenant, warranty or provision of the Contract, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non -defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Contract. Customers purchasing products or services under the Contract have no power to terminate the Contract for default. b) Purchase Order Customer or Order Fulfiller may terminate a Purchase Order or other contractual document or relationship upon the occurrence of a material breach of any term or condition: (i) of the Contract, or (ii) included in the Purchase Order or other contractual document or relationship in accordance with Section 4.13.2 above, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code, in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non -defaulting party shall give the defaulting party ten (10) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Purchase Order. Customer may immediately suspend or terminate a Purchase Order without advance notice in the event Vendor fails to comply with confidentiality, privacy, security requirements, environmental or safety laws or regulations, if such non-compliance relates or may relate to vendor provision of goods or services to the Customer. 5) Immediate Termination or Suspension Note: NO ETd:1^:POC'IONS OR ID�MVISIfON S WILL Bf, CO SIDlla;IDU4,II) DIR may immediately suspend or terminate this Contract without advance notice if DIR receives notice or knowledge of potentially criminal violations by Vendor or Order Fulfiller (whether or not such potential violations directly impact the provision of goods or services under this Contract). In such case, the Vendor or Order Fulfiller may be held ineligible to receive further business or payment but may be responsible for winding down or transition expenses incurred by Customer. DIR or Customer will use reasonable efforts to provide notice (to the extent allowed by law) to vendor within five (5) business days after imposing the suspension or termination. Vendor may provide a response and request an opportunity to present its position. DIR or Customer will review vendor presentation, but is under no obligation to provide formal response. 6) Customer Rights Under Termination 1"Wotc: NO EACETIIHONS OR RID+,VI"^wll[O'NS WILL BIE CONSIDERED In the event the Contract expires or is terminated for any reason, a Customer shall retain its rights under the Contract and the Purchase Order issued prior to the termination or 06/21/2016 Page 30 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 expiration of the Contract. The Purchase Order survives the expiration or termination of the Contract for its then effective term. 7) Vendor or Order Fulfiller Rights Under Termination Note: NO, EAClEPTIlONS OR REVISIONS W11.1, BE CONSIDERED In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all amounts due for products or services ordered prior to the effective termination date and ultimately accepted, and 2) any applicable early termination fees agreed to in such Purchase Order. C. Force Majeure DIR, Customer, or Order Fulfiller may be excused from performance under the Contract for any period when performance is prevented as the result of an act of God, strike, war, civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non- performance shall not be deemed a default or a ground for termination. However, a Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 12. Notification Note: NO lli+.i"MW".EPTlIONS OR REVISIONS WILL BE CONSIDERED A. Notices All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to the Contract shall be in writing and shall be validly given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service. All notices under the Contract shall be sent to a party at the respective address indicated in Section 6 of the Contract or to such other address as such party shall have notified the other party in writing. B. Handling of Written Complaints In addition to other remedies contained in the Contract, a person contracting with DIR may direct their written complaints to the following office: Public Information Office Department of information Resources Attn: Public information Officer 300 W. 15`h Street, Suite 1300 Austin, Texas 78701 (512) 475-4759, facsimile 13. Captions Note: NO EXCEPTIONS S OR RIIa:V'IS111OlNS WILL BE CONSIDERED D The captions contained in the Contract, Appendices, and its Exhibits are intended for 06/21/2016 Page 31 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof. 06/21/2016 Page 32 of 31 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 APPENDIX C PRICING INDEX DIR-TSO-2678 JOHNSTON TECHNICAL SERVICES, INC (JTS) Manufacturer/Product Line/Product Category Customer Discount % off MSRP Hardware Accedian Networks 6.00% ALT Fabrication 6.00% CalAmp Hardware 13.00% Accessories 10.00% Ceragon Networks Hardware/Licenses /Accessories 39.00% Antennas/3rd Party Equipment 15.00% Cielo Networks Hardware/Antennas/Accessories/Extended Warranties Does not include capacity upgrades 12.00% Eupen Cable 25.00% Connectors/Jumpers 5.00% Exalt Communications Hardware 15.00% Accessories (power supplies, cable assemblies, etc.) & extended warranties 7.00% Rackmount Solutions 3.00% Radio Waves 18.00% Samsung Wireless Local Area Network Equipment 25.00% Ubigate Network Switching Equipment 10.00% Solis Energy 4.00% Valmont/Site Pro 1 5.00% Westell 15.00% Maintenance Annual Maintenance Agreement 12.00% LinkGuard Remote Monitoring Services 12.00% Technical Services Installation & Maintenance Hourly Rate (1 -man crew) 12.00% Installation & Maintenance Day Rate Sam -5 m, 1 -man crew 12.00% Installation & Maintenance Hourly Rate 2 -man crew 12.00% Installation & Maintenance Day Rate Sam -5 m, 2 -man crew 12.00% Installation & Maintenance Hourly Rate (3 -man crew) 12.00% Installation & Maintenance Day Rate (Sam-5pm, 3 -man crew) 12.00% Installation & Maintenance Hourly Rate (4 -man crew) 12.00% Installation & Maintenance Day Rate (8am-5pm, 4 -man crew) 12.00% Site Survey (per node) 12.0006 Spectrum Analysis(per node) 12.00% Systems Engineering Hourly Rate 12.00% FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Troubleshooting Hourly Rate (2 -man crew) 12.00% FCC License Coordination Fee (single point-to-point ho 12.00% Training 1 -da 12.00% Meeting (2 -hour slot) 12.00% Mobilization (per 1 -hour increment per tech) 12.00% Report Generation 12.00% JTS Bucket Truck Usage (day rate 12.00% External Resource Lease - Man Lift (day rate) 12.00% External Resource Lease - Crane (hourly rate) 12.00% External Resource Lease - Backhoe (day rate) 12.00% Project Management 12.00% Provisioning Services 12.00% Other Services 12.00% Miscellaneous Accessories Cabling 5.00% Patch Cords 5.000/6 Connectors 5.00% Power Supplies 5.00% Protectors 5.00% Mounting Hardware (Clamps, Hangers, Brackets, Mounts, Masts, etc.) 5.00% Grounding Kits 5.00% Weatherproofing Material 5.00% Antennas 5.00% Enclosures 5.00% FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 APPENDIX D TO DIR CONTRACT NO. DIR-TSO-2678 Service Level Agreement Terms and Conditions Johnston Technical Services, Inc. (d.b.a. JTS) agrees to provide services, warranties, and support under the following document. This Service Level Agreement is executed and subject to the Terms and Conditions of the DIR Contract Number DIR-TSOcD)uv(_x 7 678 between JTS and the Customer. P inquiries for warranty or services will be made to the following address: JTS Customer Service and Warranty Dept. Dept 1530 S. Cockrell Hill Rd. Address 1 Dallas, TX 75236 Address 2 1. Scolpe This Service Level Agreement ('SLA') outlines the minimum service that a Customer may expect. This Agreement will serve as an addendum to JTS' existing Terms and Conditions.PIR Contract No. DII TS0®2678 and Existing Terms and Conditions will have sole authority during time of installatio Thereafter, in the event that any provisions of DIR Contract No. DIR TSO®2678 or.; tf addendum are in conflict. DIR Contract No. DIR TSO®2678 Drevails. 2. Term -This Agreement shall be effective from the date countersigned on JTS behalf (the "Effective Date") and shall be valid for one year. Additional years of manufacturer warranties, next business day replacements, maintenance and service agreements may be purchased at the end of the initial term. 3. Terms and Conditions a. Initial Installation: Customer agrees to purchase equipment from JTS. JTS warrants that technical, consulting, or installation service(s) furnished pursuant to this proposal shall be performed by trained and qualified personnel and shall, where applicable, meet the Customers specifications and/or the manufacturers or industries standards of workmanship and quality. This warranty shall be in effect for a period of one year from initial installation. Any service found, during the warranty period, to be nonconforming to the above stated warranty shall at JTS expense be re -performed to meet the warranty requirements. Any technical service performed beyond the scope of the initial proposal will be provided at prevailing time and material rates. b. Commercially Reasonable Efforts. During the Term of this Agreement, JTS will use its commercially reasonable efforts to maintain the Products in good operating condition by providing services and support at the Customer's request. c. Service Response. JTS' normal business hours are from 8:00 a.m. to 5:00 p.m. Monday thru Friday excluding company and state holidays. JTS shall provide response to all requests for service and support within one hour of Customer's notification to JTS during normal business hours. After hours response will be within four hours of notification to JTS Technical Support. JTS will provide field support within four hours of notification during normal business hours. After hours field support is available at JTS' published after hour emergency dispatch rates. d. Parts and Labor. Replacement parts and labor will be the responsibility of the Customer. Replacement parts are subject to the terms of the Manufacturer of each product and their warranties. e. Repair and Replace. If Next Business Day Advanced Replacement is purchased, replacement part will be coordinated through the manufacturer's Technical Support Center after trouble shooting has occurred and verified the equipment is defective. If Manufacturer's Extended Warranty only is purchased, then the availability of replacement parts are subject to availability in JTS exchange stock and on -hand stock of the Manufacturer. JTS will install a replacement at the Customer's expense. In the event a replacement part is not immediately available in stock, JTS will notify the Customer and provide priority turnaround of suitable replacement equipment. f. Force Majeure. Force Majeure that causes damage to the equipment will be handled in accordanc with Appendix A, Section 1148.C. of DIR - Contract No. DIR-SDS*xx-xTS0®2678. JTS 5310 S. Cockrell Hill Road, Dallas, TX 75236 T 972-620-1435 F 972-247-5023 sales ajts.net www.jts.net FILE# 6518 JTS Formatted: Justified Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Service Level Agreement g. Notice. Notice will be handled in accordance to Appendix A, Section 12. f DIR Contract No. DIR- TSO- 2678• Formatted: Font color: Auto h. Availability. Customer agrees to grant JTS personnel access to the facilities 24/7 and will make arrangements with any and all necessary parties. 4. Service Limitations -The following are not covered under this Agreement unless specifically accepted in writing by JTS: a. Unauthorized Repairs. JTS is not obligated to service a Product that has been repaired, maintained or modified without prior written authorization by JTS or damaged due to the Customer's negligence. Furthermore JTS repair obligations will be rendered null and void if Product serial numbers, warranty data or quality assurance decals are removed or altered. b. End of Life. This agreement does not cover any Products, or versions of Products which are no longer offered by JTS for general commercial availability. In the event any Products are withdrawn from general commercial availability JTS will make a recommendation for a suitable replacement. 5. Software -At the Customers request, JTS will make available any new releases of software or firmware that is applicable to the Customer's product. 6. On -Site Services -JTS offers assistance with the Products at the Customer premise locations. a. Exclusions. Upgrade services or general troubleshooting efforts not associated with a specific performance issue that has been isolated to the initially installed equipment. b. Security and Safety Policies. Customer's notice requesting On -Site services must include a description of any special security or safety policies which will apply to JTS personnel, or any third party assisting JTS. If any time is needed for JTS personnel, or any third party assisting JTS, for additional training or certification specific to site access will be charged in man hours to the Customer. c. Site Hazards. Customer warrants a safe place to work for JTS On -Site personnel. JTS reserves the right to terminate or refuse service, when in its opinion, conditions at the Customer site(s) represent a safety or health hazard to any of its representatives. 7. Charges and Payments All Payments will be handled in accordance with Appendix,8-X, Section TSO - JTS Representative Date JTS Signature of DIR Contract No. DIR- CUSTOMER Representative Date CUSTOMER Signature JTS 5310 S. Cockrell Hill Road, Dallas, TX 75236 T 972-620-1435 F 972-247-5023 sales ajts.net www.jts.net FILE# 6518 JTS Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 APPENDIX D TO DIR CONTRACT NO. DIR-TSO-2678 Service Level Agreement Title Title JTS 5310 S. Cockrell Hill Road, Dallas, TX 75236 T 972-620-1435 F 972-247-5023 sales ajts.net www.jts.net FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 Amendment Number 2 to Contract Number DIR-TSO-2678 between State of Texas, acting by and through the Department of Information Resources and Johnston Technical Services, Inc. Dba: JTS This Amendment Number 2 to Contract Number DIR-TSO-2678 ("Contract") is between the Department of Information Resources ("DIR") and Johnston Technical Services, Inc. Dba: JTS ("Vendor"). DIR and Vendor agree to modify the terms and conditions of the Contract as follows: 1. Contract, Section 2. Term of Contract is hereby amended as follows: DIR and Vendor hereby agree to extend the term of the Contract for one (1) year through September 8, 2018, or until terminated pursuant to the termination clauses contained in the Contract. The contract will expire on September 8, 2018. There are no renewal options remaining. Additionally, the parties by mutual agreement may extend the term for up to ninety (90) additional calendar days. 2. Contract, Section 6. Notification, is hereby replaced in its entirety as follows: All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Kelly Parker, CTPM, CTCM Director, Cooperative Contracts Department of Information Resources 300 W. 15a' St., Suite 1300 Austin, Texas 78701 Phone: (512) 475-1647 Facsimile: (512) 475-4759 Email: kelly_.parker@dir.texas.gov If sent to the Vendor: Kyle Fuller Johnston Technical Services, Inc. dba JTS 5310 S. Cockrell Hill Road Dallas, TX 75236 Phone: 972-620-1435 x125 Facsimile: 972-247-5023 Email: kyle.fullergjts.net Amendment 2 Contract DIR-TSO-2678 rev. 07/21/16 Page 1 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 3. Contract, Section 7. Software License Agreements, C. Conflicting or Additional Terms, is hereby replaced in its entirety as follows: C. Conflicting or Additional Terms In the event that conflicting or additional terms in Vendor Software License Agreements, Shrink/Click Wrap License Agreements, Service Agreements or linked or supplemental documents amend or diminish the rights of DIR Customers or the State, such conflicting or additional terms shall not take precedence over the terms of this Contract. In the event of a conflict, any linked documents may not take precedence over the printed or referenced documents comprising this contract; provided further that any update to such linked documents shall only apply to purchases or leases of the associated Vendor product or service offering after the effective date of the update; and, provided further, that, if Vendor has responded to a solicitation or request for pricing, no update of such linked documents on or after the initial date of Vendor's initial response shall apply to that purchase unless Vendor directly informs Customer of the update before the purchase is consummated. In the event that different or additional terms or conditions would otherwise result from accessing a linked document, agreement to said linked document shall not be effective until reviewed and approved in writing by Customer's authorized signatory. Vendor shall not [without prior written agreement from Customer's authorized signatory,] require any document that: 1) diminishes the rights, benefits, or protections of the Customer, or that alters the defmitions, measurements, or method for determining any authorized rights, benefits, or protections of the Customer; or 2) imposes additional costs, burdens, or obligations upon Customer, or that alters the definitions, measurements, or method for determining any authorized costs, burdens, or obligations upon Customer. If Vendor attempts to do any of the foregoing, the prohibited documents will be void and inapplicable to the contract between DIR and Vendor or Vendor and Customer, and Vendor will nonetheless be obligated to perform the contract without regard to the prohibited documents, unless Customer elects instead to terminate the contract, which in such case may be identified as a termination for cause against Vendor. The foregoing requirements apply to all contracts, including, but not limited to, contracts between Customer and a reseller who attempts to pass through documents and obligations from its Manufacturer of Publisher. Amendment 2 Contract DIR-TSO-2678 rev. 07/21/16 Page 2 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 4. Appendix A, Standard Terms and Conditions for Product and Related Services Contracts, is hereby restated in its entirety and replaced with the attached Appendix A. Standard Terms and Conditions for Product and Related Services Contracts dated 05/10/2017. All other terms and conditions of the Contract, not specifically modified herein, shall remain in full force and effect. In the event of conflict among the provisions, the order of precedence shall be Amendment Number 2, then Amendment 1, and then the Contract. Amendment 2 Contract DIR-TSO-2678 rev. 07/21/16 Page 3 FILE# 6518 JTS DocuSign Envelope ID: EC66E7E4-2907-4546-8344-9B53DD147776 IN WITNESS WHEREOF, the parties hereby execute this amendment to be effective as of the date of the last signature, but in all events, no later than 9/08/2018. Johnston Technical Services, Inc. Dba: JTS Authorized By: Name: Kim Sheffler Title: President Date: 9/8/17 The State of Texas, acting by and through the Department of Information Resources Authorized By: Aels 1 W -el Name: Hershel Becker Title: Chief Procurement Officer Date: 9/13/2017 1 11:50 AM CDT Office of General Counsel:kg--911312017 1 7:45 AM CDT Amendment 2 Contract DIR-TSO-2678 rev. 07/21/16 Page 4 FILE# 6518 JTS It CA H ti 00 �o W W W C 53 rL 0 w £ § 0 CA � s r -I � # W d � 2S/ �_ � / \ \ to opt 5 CA H ti 00 �o W W w Certificate Of Completion Envelope Id: EC66E7E42907454683449B53DD147776 Subject: City Council Docusign Item - 6518 JTS Source Envelope: Document Pages: 58 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/7/2017 12:03:56 PM Signer Events Robyn Forsyth robyn.forsyth@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign John Thompson john.thompson@jts.net Sales Manager Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/7/2017 1:12:22 PM ID:1694e3f0-63dd-4681-abaa-c703dbe2116a Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman todd.hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Robyn Forsyth robyn.forsyth@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 E 0-kft..d by Tuop , 8�3772tA75AW499... Using IP Address: 98.6.225.34 Ef9WU$19..d py , 597253BAC458489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Robyn Forsyth 901 B Texas Street Denton, TX 76209 robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/7/2017 12:12:08 PM Viewed: 12/7/2017 12:12:31 PM Signed: 12/7/2017 12:13:20 PM Sent: 12/7/2017 12:13:23 PM Viewed: 12/7/2017 1:12:22 PM Signed: 12/7/2017 1:12:55 PM Sent: 12/7/2017 1:12:59 PM Viewed: 12/7/2017 1:40:30 PM Signed: 12/7/2017 1:40:39 PM Sent: 12/7/2017 1:40:41 PM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Julia Winkley julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/7/2017 1:12:58 PM Sent: 12/7/2017 1:12:58 PM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Kathy Gault kathy.gault@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy Markum randy.markum@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 1:40:41 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: John Thompson, Todd Hileman ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1617, Version: 1 AGENDA CAPTION Consider adoption of an ordinance accepting competitive bids and awarding a contract for the supply of Parkland Maintenance Products including but not limited to landscape and turf fertilizer, insecticides, herbicides, mulch, and peat moss for the City of Denton Parks and Recreation Department; providing for the expenditure of funds therefor; and providing an effective date (IFB 6409 -awarded to the lowest responsive bidder for each line item in the three (3) year not -to -exceed amount of $196,741). City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Dent _ on city Hale 41"I&IMMM215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Parkland Maintenance Products including but not limited to landscape and turf fertilizer, insecticides, herbicides, mulch, and peat moss for the City of Denton Parks and Recreation Department; providing for the expenditure of funds therefor; and providing an effective date (IFB 6409 -awarded to the lowest responsive bidder for each line item in the three (3) year not -to -exceed amount of $196,741). BID INFORMATION This bid is to provide parkland maintenance products for the City of Denton parks, right-of-way areas, landscape beds, athletic fields and other general park areas. This includes approximately 1,000 acres of parks, medians, right-of-way areas and public building landscape areas such as grass and flower beds. Some of the major locations that are maintained include: City Hall, libraries, fire stations, recreation centers, the Civic Center, Quakertown Park, Fred Moore Park, North Lakes Park, South Lakes Park and medians in areas such as Loop 288, University Drive, and Dallas Drive. The maintenance products include fertilizers which are necessary to supplement nutrients in the soil so that it promotes leaf and root growth on turf, trees, and ornamental shrubs. This specifically aids in turf recovery from foot traffic on athletic fields and natural soil deficiencies in macro/micro nutrients. Fertilizer also assists in weed control. Herbicides are used to control unwanted weeds in specific warm/cool season turfs and landscapes. Insecticides are used to control insect infestations on turf, trees, and ornamental shrubs. Soil amendments are used to balance the soil nutrients and maintain proper PH, for water retention, and to aid in weed control. Additives are used to facilitate more efficient applications and reduce misapplications. Invitations for Bid were sent to 129 prospective suppliers for these items. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Six (6) bids were received. Staff recommends awarding to the lowest responsible bidder meeting specification for each line item as shown on Exhibit 2. The lowest price bidder(s) for Items Al, C6, C10, C15, did not meet specification and/or delivery requirements, therefore staff is recommending award to the next low bidder. Item Bl will not be awarded -staff has determined that this product can only be used for residential purposes. Item D5 will not be awarded -staff has determined that the components of this product should not be used for Parks maintenance. RECOMMENDATION Award to the lowest responsible bidder meeting specification for each item as listed on Exhibit 2 in the three (3) year not -to -exceed amount of $196,741. A summary of the recommended bidder for each item is listed below. PRINCIPAL PLACE OF BUSINESS SiteOne Landscape Irrigators Supply BWI Companies, Inc. Cleveland, OH Little Elm, TX Carrollton, TX Harrell's LLC Winfield Solutions Helena Chemical Company Lakebed, FL Carrollton, TX Greenville, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION These products will be funded from the Parks and Recreation accounts listed below: Athletics/Grounds Maintenance 402110.6334 Athletics/Grounds Maintenance 402110.6514 Right of Way Maintenance 402130.6334 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: 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: Bid Tabulation Exhibit 3: Ordinance Exhibit 4: SiteOne Landscape Supply Contract Exhibit 5: Irrigators Supply Contract Exhibit 6: BWI Companies, Inc. Contract Exhibit 7: Harrell's LLC Contract Exhibit 8: Winfield Contract Exhibit 9: Helena Chemical Company Contract Respectfully submitted: Karen Smith, 349-8436 Purchasing Manager For information concerning this acquisition, contact: Russell Koch at 349-8412. RFP 6409 -Tabulation Sheet for Park Maintenance Products m®mom mmamm®m>m�mmmtmm®m®mm■mms��mms�m® m�mm■mms� m®mm. m�mmamm>m��mmsm�mm■mms��mms�mamms�mm■mms� m®mm. m® m»mm�mm®mmmm■mmsm�m�mmsmm�mammsm�mm■mmsmm■ m®mm. mm■mms��mmsm�mm■mms��mms�mamms�mm■mms� mum® m®mm�mm>m�mm�mm�m®mm■mms��mms�mm�mmmtm�mm■mms� m®mm. m®mm®m�mm»mmm�m®mm■mms�m®mm® m®mmm�m�m®mmmtmm■ m®mm. mmammmtm»mm»mm®mmmm■mms�m®mm® mm�mmmtm�mm■mms� m®mm. m®mmmtm�mm»mmm�m®mm■mms�m®mm® m® m�m�mmmtmm■ m®mm. m® m�mmmt mmmm■mms�m®mm® m®mm®m�m�mmlmmm■ m®® �m® m»mm�mmsm�mm■mmsm�m�mmsmm�mammsm�mm■mmsmm■ mum® �mms��mms��mms��mms�mamms�mm■mms� m®mm. m®mmmtm��mmsm�mm■mms�m®mmmlt m®mm®mem® mm■ m®mm. mmm m>m�mmmt m®m® m�mm� �mms�m® mm■ mmtmm. m®mmmtm»mmmtmmm�m®mm�mm�m� mm® mm� m�mmnm®a ma m®mm®m�m�mm®m®m®mm®m�mm�ammm� m®mm®mem®m®mm■ momm. m®mmmtm�m®mm®m®m®mmmm�m®mmm� m®mm®m�mm�mmammm■ m®mss m® m»mm�mmm�m®m® m�mm� m® mem® a mmtm�s m®mm�mm�mm�mmmmltm®mm�mm�m�m®mm® mm�mmm�m�m®mmmtmm■ mmtm® mmammmtm�mmmtmm®m®m®mmmm�m®mmm� m®mm®mem®mmlmmm■ momm. m>m�m� m® m� m® mm■ m®m® m® m»mmmtmm®m®m® m�o� mm� m�mm� a m®mzm� m®mm®m�mmmt m®m®m®mem® mm�mm�mm�m® mm■ m®m® m®m®m�mmammmm�m®m®m®m�m�mm® m®mmm,m�mm�mmmtmm■ mmtm® mmmmtm�mm�mm®m®mmmemmm® mmmmtm�mmmmlmm■ mmtm® m®mmmtm»mmammmmltm®o�mm®m�mm�mmm� mm�m®mem®mmmta m®m® m®mmmlm�mm�mmm�m®m®m®mem®mmmt m®mmmtm�m®mmmlmm■ m®m® m® mem®mmm�m®mmm mem®mm® m®mm�mm�m® mm■ m®m® m®mm®m�mmmtmm®m®m®mmmm�m® m®mm�m�mm�mmlmmm■ mmtmm. m m»mmlm m®mm� mem®mm® m mamma a m®mm. m®mmmtm»mmimmm®mmmm�m®mem®mmm� mm�mmmtm�m®mmmta m®m® m®mm®mem®mm®gym®mmmm�m®mm® m®mm�m�mmammlmmm■ m®m® m®mmmtm�mma®mm®gym®mmmm�m®mm® mmmmmm�m�m®m®mm■ m®mm• m®mm®m�mm®mmmt�����mms�m�mmmtm�mm■mms� m®m® m® m»mm�mmsm�m�mm�m�m�mmsmm�mammsm�mm■mmsmm■ m®m® mmm m�mmsmmsm�����mms�m®mmmtm�mm■mms� m®m® m®mm®m�mmsmmsm�����mms�mmammmtm�mm■mmsmm■ mm�mm! mm■mmsm�mmsmmsm�m�mm�m�m�mmsmm�m® m�mm■mmsmm■ m®mm! m®mm�em�mmsmmsm�����mms�mamms�mm■mms� m®® mm■mmsm�mmmt m®m�mm�m�m� mammsm�mm■mmsmm■ m®mum mm■mmsm�mmam m®m�mm�m�o� mammsm�mm■mmsmm■ m®mum mm■mmsm�m® m®m�mm�m�mma mammsm�mm■mmsmm■ m®mum mm■mmsm�mm»mmm�m®m�mm�m�mma m®mammsm�mm■mmsmm■ ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE SUPPLY OF PARKLAND MAINTENANCE PRODUCTS INCLUDING BUT NOT LIMITED TO LANDSCAPE AND TURF FERTILIZER, INSECTICIDES, HERBICIDES, MULCH, AND PEAT MOSS FOR THE CITY OF DENTON PARKS AND RECREATION DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (IFB 6409 -AWARDED TO THE LOWEST RESPONSIVE BIDDER FOR EACH LINE ITEM IN THE THREE (3) YEAR NOT -TO -EXCEED AMOUNT OF $196,741.) WHEREAS, the City 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 and City Ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies, or services as shown in the "Bid Proposals" submitted therefor; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER ITEM NUMBER 6409 A6, D1, D3, D4, E2, E3 6409 C7, C8, C9, C14, F1-4 6409 Al, A2, A7, B3, C5, E1 E4 6409 A3, A5, C 1-C3, C6, C 10 C12 6409 A8-9, B2, B4, C4, C 15, D2 6409 C1 1, C 13 VENDOR AMOUNT SiteOne Landscape Supply $15,614 Irrigators Supply $76,155 BWI Companies, Inc. $21,284 Harrell's LLC $43,635 Winfield Solutions $12,873 Helena Chemical Company $27,180 SECTION 2. By the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items, and agrees to pur- chase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute a written contract in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Bid Proposal and related documents and to extend that contract as determined to be advantageous to the City of Denton. 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 IFB 6409 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 bids. SECTION 6. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: t i DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND SITEONE LANDSCAPE SUPPLY Contract # 6409 THIS CONTRACT is made and entered into this date , by and between SiteOne Landscape Supplyy a corporation, whose address is 1385 East 36th Street, Cleveland, Ohio, 44114, hereinafter a corporation, whose address is, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER pocu&gned by: k. Vb a ks BY: 932a.424 M AUTHORIZED SIGNATURE Name: Molly M. vorous Title: senior Bid Representative 216-404-0042 PHONE NUMBER MPotts@siteone.com EMAIL ADDRESS 2017-287754 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY DocwSigned by: BY: Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasina&cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $15,614. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D 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. 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 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 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. Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-C05BDOFE664D Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products SiteOne Landscape Supply Cleveland, Ohio EST. Item # ANN UOM Product Description Unit Price Est Del. ARO (Bus. Days) QTY SECTION A - LANDSCAPE AND TURF FERTILZER 6 20 50 lb. 124-2-12 50%SRN TRC .8%FE $ 12.15 3-5ARO SECTION D - CHEMICAL ADDITIVES AND MISCELLEANEOUS 1 Blue Spray Dye 2 2.5 gal. $ 41.82 3 - 5 ARO 3 Antifoamer/Defoamer 24 Quart $ 3.69 3 - 5 ARO 4 Neutralize Tank Cleaner 12 1 2 lb. $ 5.79 3 - 5 ARO SECTION E - SOIL AMENDMENTS Sunshine Mix #4 2 10 3.8 cu. ft. $ 4.00 3 - 5 ARO Cypress Mulch No Float 3 2000 3 cu. Ft. $ 2.34 3 - 5 ARO DocuSign Envelope ID: ABB5D915-5F80-40BF-8CBD-CO5BDOFE664D Exhibit F 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. Si te0ne Landscape supply 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? 0 Yes 0 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? 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 Docu&gned by: 12/6/2017 k.�,ibl�a9�S doing business with the governmental entity Date Certificate Of Completion Envelope Id: ABB5D9155F8040BF8CBDC05BDOFE664D Subject: Please DocuSign: City Council Contract 6409 (SiteOne Landscape Supply) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/5/2017 4:47:45 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Molly M. Vorous MPotts@siteone.com Senior Bid Representative Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/6/2017 1:28:07 PM ID:fa953d47-9530-4368-976d-a6be7d7a9dab Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 sn.wau9nad by, 1Atlit.. A.ED v"L s 42A�F.mdP�E797d"l Using IP Address: 50.226.179.68 E0WV$19..d py , 597253BAC458489.. Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 5:01:01 PM Viewed: 12/5/2017 5:01:07 PM Signed: 12/5/2017 5:02:27 PM Sent: 12/5/2017 5:02:29 PM Viewed: 12/6/2017 1:28:07 PM Signed: 12/6/2017 1:39:34 PM Sent: 12/6/2017 1:39:38 PM Viewed: 12/7/2017 7:21:36 AM Signed: 12/7/2017 7:21:40 AM Sent: 12/7/2017 7:21:42 AM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/6/2017 1:39:36 PM Sent: 12/6/2017 1:39:37 PM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 7:21:42 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: Molly M. Vorous, Todd Hileman ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. 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DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND IRRIGATORS SUPPLY Contract 6409 THIS CONTRACT is made and entered into this date , by and between IRRIGATORS SUPPLY a corporation, whose address is 101 Throckmorton Street, McKinney, TX 75069 , hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER DocuSigm,ed by: BY: AUTHORIZED SIGNATURE Name: William Phelps Title: OPERATIONS MGR 214-551-6588 PHONE NUMBER bubba@irrigators-supply.net EMAIL ADDRESS bubba@irrigators-supply.net TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc;usigned by: BY: FSQ4HM a A 9 q .. Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasinakcityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $76,155. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: F2CA9BOE-7075-4F23-B1 1 E-E059346DOC77 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of I% or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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. 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. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 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 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. Contract 6409 DocuSign Envelope ID: F2CA91BOE-7075-4F23-1311E-E059346DOC77 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products IRRIGATORS SUPPLY McKinney, TX Estimated ARO delivery days are based on product availibilty from Manufacturer to produce and delivery above listed items EST. Item # ANN UOM Product Description Unit Price Est Del. ARO (Bus. Days) QTY SECTION C - HERBICIDES 7 24 1 gal. Barricade 41, $ 62.50 10-15 DAYS 8 80 50 lb. bag Snapshot $ 73.50 10-15 DAYS 9 10 1 gal. Confront $ 97.50 10-15 DAYS 14 12 50 lb. bag Ronstar G $ 71.25 10-15 DAYS SECTION F - BULK FERTILIZER AND APPLICATION 1 5 Ton 42-0-0 w/50%SCU 1.6% FE Trace Package $ 850.00 10-15 DAYS 2 5 Ton 28-3-10 w/50%SCU 3% FE Trace Package $ 775.00 1 10-15 DAYS 3 10 Ton 46-0-0 Urea $ 505.00 10-15 DAYS 4 20 Ton Application Bulk Granules $ 150.00 N/A Estimated ARO delivery days are based on product availibilty from Manufacturer to produce and delivery above listed items DocuSign Envelope ID: F2CA9130E-7075-4F23-1311E-E059346DOC77 Exhibit F CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. Name of vendor who has a business relationship with local governmental entity. N/A 2 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. N/A Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 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? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. N/A 4 X I have no Conflict of Interest to disclose. 5 oacasigned by: 12/7/2017 5 IWAw�t , "w#OWlOP2MVdOP,doitilTbusiness with the governmental entity Date Certificate Of Completion Envelope Id: F2CA9B0E70754F23B11 EE059346DOC77 Subject: Please DocuSign: City Council Contract 6409 (Irrigators Supply) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/5/2017 5:05:55 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign William Phelps bubba@irrigators-supply.net OPERATIONS MGR Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/7/2017 10:41:07 AM ID:141443ba-12be-4502-b7d0-2a85a7d8ef28 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 c�w-sbg.ed nr=. P64s Dzoosas�iasnseA9.. Using IP Address: 24.173.209.198 E0WV$19..d py , 597253BAC458489.. Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 5:12:13 PM Viewed: 12/5/2017 5:12:20 PM Signed: 12/5/2017 5:14:19 PM Sent: 12/5/2017 5:14:21 PM Resent: 12/7/2017 6:45:02 AM Viewed: 12/7/2017 10:41:07 AM Signed: 12/7/2017 11:53:20 AM Sent: 12/7/2017 11:53:24 AM Viewed: 12/7/2017 1:39:16 PM Signed: 12/7/2017 1:39:22 PM Sent: 12/7/2017 1:39:24 PM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/7/2017 11:53:22 AM Sent: 12/7/2017 11:53:23 AM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Behrens Laura. behrens@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Emerson Vorel Emerson.vorel@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 1:39:24 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: William Phelps, Todd Hileman 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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Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, Netscape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: -Allow per session cookies -Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BWI COMPANIES, INC. Contract 6409 THIS CONTRACT is made and entered into this date , by and between BWI Companies, Inc a corporation, whose address is 1418 Upfield Dr., Carrollton, TX 75006, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER DocuSigned by: BY: AUTHORIZED SIGNATURE Name: Mike Sandler Title: TURF COORDINATOR 9722424755 PHONE NUMBER mikesandler@bwicompanies.com EMAIL ADDRESS mikesandler@bwicompanies.com TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY DocwSigned by: BY: Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasina&cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $21,284. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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. 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 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 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. Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products BWI Companies, Inc. Carrollton, TX Item # EST. ANN QTY UOM Product Description Unit Price Est Del. ARO (Bus. Days) SECTION A - LANDSCAPE AND TURF FERTILZER 1 15 25 lb. Color Star Fertilizer $ 27.00 7-10 Days 2 15 25 lb. Blossom Booster Peters 10-30-20 $ 32.94 7-10 Days 7 30 50 lb. 33-0-0 Fertilzer $ 9.00 7-10 Days SECTION B - INSECTICIDES 3 20 25 lb. Extinguish Plus Fire Ant Bait $ 169.00 7-10 Days SECTION C - HERBICIDES 5 4 2.5ga1 Pendimethalin Non Staining $ 75.00 7-10 Days SECTION E - SOIL AMENDMENTS 1 104 3.8 cu. ft. Peat Moss $ 15.00 7-10 Days 4 126 2 cu. Ft. Back to Nature Cotton Bur Compost $ 5.44 7-10 Days DocuSign Envelope ID: 5987DD1B-DOF5-44E9-86D5-B9873A21AF9D Exhibit F 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. BWI COMPANIES, INC 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. N/A Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 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? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. N/A 4 ❑I have no Conflict of Interest to disclose. 5 DacuSigned by: i�.t�.t✓SaALr 12/7/2017 $kkI�.dl7krXg business with the governmental entity Date Certificate Of Completion Envelope Id: 5987DD1BDOF544E986D5B9873A21AF9D Subject: Please DocuSign: City Council Contract 6409 (BWI) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/6/2017 2:15:58 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Mike Sandler mikesandler@bwicompanies.com TURF COORDINATOR Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/7/2017 6:11:31 AM ID:89e24d1d-39de-4626-8ace-ec1a09057a17 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 EkgncuSl9a®d hY: t' SOL) t0'ME'.DB83C2447d... Using IP Address: 207.10.206.145 E0WV$19..d py , 597253BAC458489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/6/2017 2:19:29 PM Viewed: 12/6/2017 2:19:39 PM Signed: 12/6/2017 2:21:49 PM Sent: 12/6/2017 2:21:50 PM Viewed: 12/7/2017 6:11:31 AM Signed: 12/7/2017 6:13:44 AM Sent: 12/7/2017 6:13:48 AM Viewed: 12/7/2017 7:20:53 AM Signed: 12/7/2017 7:20:58 AM Sent: 12/7/2017 7:21:00 AM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/7/2017 6:13:45 AM Sent: 12/7/2017 6:13:47 AM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Behrens Laura. behrens@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Emerson Vorel Emerson.vorel@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 7:21:00 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: Mike Sandler, Todd Hileman 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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DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HARRELL'S, LLC Contract 6409 THIS CONTRACT is made and entered into this date , by and between Harrell's, LLC a corporation, whose address is 5105 New Tampa Highway, Lakeland, FL, 33815, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER Docu3igned by: BY: C? Br"rL1 Ag9117h. AUTHORIZED SIGNATURE Name: Kevin Lebanik Title: Territory sales Manager 817-659-9111 PHONE NUMBER KLebanik@harrells.com EMAIL ADDRESS IFB 6409 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY DocwSigned by: BY: Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasina&cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $43,635. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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. 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 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 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. Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products Harrell's LLC Lakebed, FL EST. Item # ANN UOM Product Description Unit Price Est Del. ARO (Bus. Days) QTY SECTION A - LANDSCAPE AND TURF FERTILZER 3 15 25 lb. Peters Miracid 21-7-7 $ 15.16 1-2 days 5 2 500 tablets Agriform Tablets 21g. $ 41.00 2-4 days SECTION C - HERBICIDES 1 2 2.5 gal. Finale $ 114.70 2-4 days 2 1 30 gal. Glyphosate Plus 10% Sufactant $ 341.25 1-2 days 3 100 2.5 gal. Glyphosate Plus 10% Sufactant $ 29.99 1-2 days 6 1 30 gal. Barricade 41, $ 3,570.00 1-2 days 10 4 1 gal. Specticle Flo $ 1,606.50 1-2 days 12 5 1 gal. Primo Maxx $ 134.00 1-2 days DocuSign Envelope ID: 74C7A2BD-0705-4204-AA8F-B3A36A30BC67 Exhibit F 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. Harrell ' S LLC 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? 0 Yes 0 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? 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. 5Docu....signed by: (A�alu 12/7/2017 fol; business with the governmental entity Date Certificate Of Completion Envelope Id: 74C7A2BDO7054204AA8FB3A36A30BC67 Subject: Please DocuSign: City Council Contract 6409 (Harrells LLC) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/5/2017 5:23:03 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Kevin Lebanik KLebanik@harrells.com Territory sales Manager Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/6/2017 4:39:14 AM ID: c77649ad-87f7-4db5-ac68-dcc928f687f6 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 wmcwsu9aed by, 1"W W49uk L299c561a565.?D... Using IP Address: 47.32.206.98 E0WV$19..d py , 597253BAC456489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 5:28:31 PM Viewed: 12/5/2017 5:28:37 PM Signed: 12/5/2017 5:29:42 PM Sent: 12/5/2017 5:29:44 PM Viewed: 12/6/2017 4:39:14 AM Signed: 12/7/2017 4:44:19 AM Sent: 12/7/2017 4:44:23 AM Viewed: 12/7/2017 7:21:10 AM Signed: 12/7/2017 7:21:14 AM Sent: 12/7/2017 7:21:16 AM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/7/2017 4:44:21 AM Sent: 12/7/2017 4:44:22 AM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Behrens Laura. behrens@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Emerson Vorel Emerson.vorel@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 7:21:16 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: Kevin Lebanik, Todd Hileman ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. 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DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND WINFIELD SOLUTIONS Contract 6409 THIS CONTRACT is made and entered into this date , by and between Winfield Solutions a corporation, whose address is 1221 Champion Circle #107, Carrollton, TX 75006, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER Docuftnedl by: AUTHORIZED SIGNATURE Name: GREG BRONNIMAN Title: Sales 214-500-8862 PHONE NUMBER gkbronniman@landolakes.com EMAIL ADDRESS 2017-291376 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc;usigned by: ty BY: !.. Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasina&cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $12,873. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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. 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 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 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. Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products Winfield Carrollton, TX EST. Item # ANN UOM Product Description Unit Price Est Del. ARO (Bus. Days) QTY SECTION A - LANDSCAPE AND TURF FERTILZER 8 15 50 lb. 15-5-10 Fertilizer $ 9.95 1 9 30 50 lb. 18-24-12 50% Slow release Fertilizer $ 16.24 3 SECTION B - INSECTICIDES 2 10 20 lb. Delta Guard - Granuals $ 22.50 1 4 4 25 lb. Advion Fire Ant Bait $ 248.00 1 SECTION C - HERBICIDES 4 4 2.5 gal. Aquatic Glyphosate 53.8% $ 42.45 1 15 4 2.5 gal. Dimension 2 EW $ 525.00 1 SECTION D - CHEMICAL ADDITIVES AND MISCELLEANEOUS 2 12 1 gal. Non Ionic Surfactant $ 14.00 0 DocuSign Envelope ID: A7A85068-4071-4134-8174-ODBBFC3697AF Exhibit F 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. Winfield 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate. 3 1 Name of local government officer about whom the information in this section is being disclosed. 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? 0 Yes 0 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? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. Noe 4 X I have no Conflict of Interest to disclose. 5 Docuftnedlby. tomhQ 12/6/2017 doing Wsinc�,,s with the governmental entity Date Certificate Of Completion Envelope Id: A7A85068407141348174ODBBFC3697AF Subject: Please DocuSign: City Council Contract 6409 -(Winfield Solutions) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/5/2017 4:39:05 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign GREG BRONNIMAN gkbronniman@landolakes.com Sales Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/6/2017 12:45:43 PM ID:62e7ff34-a088-4cae-ae4c-49997c1c7d9e Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 0—signed by; am� N a48s77D32BB+wea . Using IP Address: 104.129.204.80 E0WV$19..d by , 597253BAC456489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 4:44:31 PM Viewed: 12/5/2017 4:44:37 PM Signed: 12/5/2017 4:47:02 PM Sent: 12/5/2017 4:47:04 PM Viewed: 12/6/2017 12:45:43 PM Signed: 12/6/2017 12:53:19 PM Sent: 12/6/2017 12:53:23 PM Viewed: 12/7/2017 7:21:49 AM Signed: 12/7/2017 7:21:56 AM Sent: 12/7/2017 7:21:59 AM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/6/2017 12:53:20 PM Sent: 12/6/2017 12:53:21 PM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Behrens Laura. behrens@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Emerson Vorel Emerson.vorel@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 7:21:59 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: GREG BRONNIMAN, Todd Hileman 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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DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HELENA CHEMICAL COMPANY Contract 6409 THIS CONTRACT is made and entered into this date , by and between Helena Chemical Company a corporation, whose address is 6801 Highway 66 West, Greenville, TX 75402, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6409 -Parkland Maintenance Products, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6409 (Exhibit `B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal. (Exhibit "E"); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." INDEMNITY THE SUPPLIER 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 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 Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER Doc uSigned by: BY: aer sanr ra394C11.. AUTHORIZED SIGNATURE Name: JEFF SMITH Title: Sales Rep 903-815-4112 PHONE NUMBER Smithj2@helenachemical.com EMAIL ADDRESS 2017-291490 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc;wSigned �sf ' aw,r,F�P� r ., BY: Contract 6409 TODD HILEMAN CITY MANAGER DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasina&cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation On Supplier'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 US Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for Agricultural Products (WPU065). 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 Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF The Supplier'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 Supplier 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 Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. 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: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $27,180. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF 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. fi. 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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse 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 Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 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. 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 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, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 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. l0a - 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 defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.httn and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A513250C11 DBF 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 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. Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6409 DocuSign Envelope ID: 3EAE3300-6142-4255-99A5-A5B250C11 DBF EXHIBIT E RFP 6409 - Pricing Sheet for Park Maintenance Products Helena Chemical Company Greenville, TX EST. AY Est Det. ARO Item # UOM Product Description Unit Price YNN QTus. Days) SECTION C - HERBICIDES 11 4 1 lb. SureGuard $ 130.40 3-7 days 13 300 501b. bag 5-0-15 w/ I% Ronstar $ 28.46 3-7 days DocuSign Envelope ID: 3EAE3300-Bl42-4255-99A5-A5B250C11DBF Exhibit F 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? 0 Yes 0 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? 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 Docuswsned tyy. - F12/6/2017 41jq�#Ipf.��oing business with the governmental entity Date Certificate Of Completion Envelope Id: 3EAE330013142425599A5A5B250C11DBF Subject: Please DocuSign: City Council Contract 6409 (Helena Company) Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/5/2017 5:16:40 PM Signer Events Jody Word jody.word@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign JEFF SMITH Smithj2@helenachemical.com Sales Rep Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/6/2017 12:27:07 PM ID: bf8ab6fa-b486-4d2e-bd05-a13c42571ade Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jody Word jody.word@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 EDow$gned i4y^ h'97'Fiu"Sd7'flQ3FlA�C 1... Using IP Address: 209.55.117.91 Signed using mobile E0WV$19..d py , 597253BAC458489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word 901 B Texas Street Denton, TX 76209 jody.word@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 5:20:24 PM Viewed: 12/5/2017 5:20:30 PM Signed: 12/5/2017 5:21:47 PM Sent: 12/5/2017 5:21:49 PM Resent: 12/6/2017 12:03:11 PM Resent: 12/6/2017 12:10:25 PM Viewed: 12/6/2017 12:27:07 PM Signed: 12/6/2017 3:17:14 PM Sent: 12/6/2017 3:17:19 PM Viewed: 12/6/2017 5:43:56 PM Signed: 12/7/2017 7:21:28 AM Sent: 12/7/2017 7:21:30 AM Signer Events Signature Timestamp Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/6/2017 3:17:17 PM Sent: 12/6/2017 3:17:18 PM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Russell Koch Russell. Koch@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Behrens Laura. behrens@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Emerson Vorel Emerson.vorel@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 7:21:30 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: JEFF SMITH, Todd Hileman 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 DEYPIN Legislation Text File #: ID 17-1653, Version: 1 AGENDA CAPTION Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing an agreement between the City of Denton and Member Cities of the "Atmos Cities Steering Committee" (ACSC); finding and determining that the meeting at which this resolution was passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton city Hale 41"X'IAIW�215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com DEPARTMENT: DCM: DATE: AGENDA INFORMATION SHEET Finance Bryan Langley December 12, 2017 SUBJECT Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing an agreement between the City of Denton and member cities of the "Atmos Cities Steering Committee" (ACSC); finding and determining that the meeting at which this resolution was passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provision related to the subject; and declaring an effective date. BACKGROUND On May 23, 2017, the City Council approved Resolution No. R2017-021 approving a change in the rates of Atmos Energy Corporation as a result of a settlement between Atmos and the Atmos Texas Municipalities ("ATM") under the Rate Review Mechanism. During consideration of this resolution, the City Council directed staff to discuss the City's membership options for future Atmos rate filings with the Audit/Finance Committee ("Committee"). On October 24, 2017, the City Council held a work session discussion regarding the City's options for joining one of two coalitions of cities for Atmos related rate filings and other regulatory matters. The City Council directed staff to present a resolution at a future City Council meeting for the City to join the Atmos Cities Steering Committee ("ACSC") coalition. ACSC is represented by the law firm of Lloyd, Gosselink, Rochelle & Townsend, P.C., and is comprised of 171 member cities with approximately 1,053,840 meters (975,406 residential and 78,434 commercial). This coalition is funded through an annual membership assessment which is currently $0.02 per capita for 2017. The assessment has historically been $0.04 per capita and may return to that level based on the coalition's activities. No formal approval of change in assessment is required but a city may opt to formally approve by resolution. The assessment pays for non -reimbursable expenses for other regulatory matters. Reimbursable expenses for rate filings and other regulatory matters, as applicable, are generally paid for by Atmos. Within the city of Denton, Atmos currently serves 20,784 meters (18,606 residential and 2,178 commercial). The City's annual membership assessment at $0.02 per capita would be approximately $2,500. RECOMMENDATION Staff recommends approval of the resolution. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 24, 2017, the City Council held a work session discussion and directed staff to present a resolution at a future City Council meeting for the City to join the Atmos Cities Steering Committee ("ACSC") coalition. On September 12, 2017, the Audit/Finance Committee recommended that staff present this matter to the City Council in a work session. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Agenda Information Sheet 2. Resolution Respectfully submitted: Chuck Springer, 349-8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance sAlegal\our documents\resolutionsA 7\atmos cities steering commitiee resolutiomdocx RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON AND MEMBER CITIES OF THE "ATMOS CITIES STEERING COMMITTEE" (ACSC); FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS IN ACCORDANCE WITH THE REQUIREMENTS OF THE TEXAS OPEN MEETINGS ACT; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the cities in the service area of Atmos Gas have worked together collectively in a coalition to participate in the regulatory process to assure gas rates charged where just and reasonable; and WHEREAS, the nature of gas utility regulation is undergoing change; and WHEREAS, there remains a need for cities to cooperate to assure the public interest is protected and gas and other utility rates are just and reasonable; and WHEREAS, regulatory changes now require quick response in order to have meaningful input into the rate setting process; and WHEREAS, it is necessary to provide adequate resources to enable cities to act quickly, decisively, and jointly on gas utility regulatory developments; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings set out in the preamble of this Resolution are in all things approved and incorporated herein as if fully set forth. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement, for and on behalf of the City of Denton, Texas, in substantially the form of the Agreement being attached hereto and incorporated herein as Exhibit "A". SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR sAlegal\our documents\resoIutions\17\atmos cities steering committee resolution.doex ATTEST: JENNIFER WALTERS, CITY SECRETARY m APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY jJ BY: z Yi Q Page 2 THIS Agreement is made and entered into on this the 12th day of December, 201Z, by, between and among the CITY OF DENTON, TEXAS ("City") and member cities of the ATMOS CITIES STEERING COMMITTEE -("ACSC"). This Agreement is authorized by the Texas Interlocal. Cooperation Act (V.T.C.A. Texas Government Code, Chapter 791), and other authorities. WITNESSETH: WHEREAS, the cities in the service area of Atmos Gas have worked together collectively in a coalition to participate in the regulatory process to assure gas rates charged were just and reasonable; and WHEREAS, the nature of gas utility regulation is undergoing change; and WHEREAS, there remains a need for cities to cooperate to assure the public interest is protected and gas and other utility rates are just and reasonable; and WHEREAS, regulatory changes now require quick response in order to have meaningful input into the rate setting process; and WHEREAS, it is necessary to provide adequate resources to enable cities to act quickly, decisively, and jointly on gas utility regulatory developments; NOW THEREFORE, In consideration of the premises, agreements, covenants and promises set forth herein, it is agreed as follows: 1. Atmos Cities Steering!Qowmittee Membership and Executive Committee The City and the member cities hereby form the ACSC. Each member city shall, by action of its governing body, approve its Membership in the ACSC and designate its representative to receive notices and participate in and vote at ACSC meetings, The ACSC shall be composed of all cities paying the current nonrefundable membership fee. The membership assessment shall be established annually by the Executive Committee. The current year assessment is 20 per capita, according to the City's population listed on the most recent Texas Municipal League online guide. The members shall elect an Executive Committee consisting of no more than twenty (20) persons which shall function as the Board of Directors. The Executive Committee shall at least include a representative from all member cities with a population greater than 100,000, according to the most recent Texas Municipal League Directory of Texas City Officials. The remainder of the representatives shall be selected based upon diversity of geographic location and city population size. Each city on the ACSC and each city on the Executive Committee shall have one vote, respectively. Meetings of the Executive Committee shall be open to each city on the ACSC whether or not it has a representative on the Executive Committee. Powers of Executive Committee The City and the member cities delegate to the Executive Committee the power to intervene on behalf of ACSC member cities in gas projects, rulemaking, rate case, and related dockets and appeals thereof, represent the interests of cities in utility matters before state and federal legislative bodies and to pay for such activities. A member city may subsequently request and cause its party status to be withdrawn from such activities. The Executive Committee shall fix the amount of the membership fee from time to time. 3. Election of Officers The Executive Committee shall elect a chair and any co-chairs as it deems necessary who shall serve at the pleasure of the Executive Committee. The Executive Committee shall also elect a secretary/treasurer. 4. Powers of the Officers Each officer elected shall serve at the pleasure of the Executive Committee up to a term of four (4) years. The Executive Committee shall elect or re-elect officers at least every four (4) years. Unless terminated by the Executive Committee or the respective city governing body, the officer shall perform the duties of office until a replacement has been elected. Meetings of the Executive Committee and ACSC shall be upon call of the chair or two (2) members of the Executive Committee. The Executive Committee shall meet at least annually. The chair is authorized by action of the Executive Committee to engage consultants and attorneys and to pay for such services. 5 TEEMJ_nation of Membership A city may terminate its membership by action of its governing body, or if said city fails to pay its membership fee in full within one -hundred eighty (180) days after notification of fee due. A city is considered notified on the day written notice is sent to its last designated representative on file with the secretary/treasurer. 6. Money Held in Trust The officers shall hold and manage all money collected in trust for the benefit of the member cities collectively. Officers may establish prudent fund accounts that accumulate funding for activities and to pay authorized expenses. Officers shall serve without pay, but may be reimbursed reasonable out-of-pocket expenses as approved by the Executive Committee. The City may request and receive a statement of ACSC revenues and expenses each year. (2) M By entering into this Agreement City affirms that it is paying for the performance of governmental functions or services from current revenues available. The payments made under this agreement fairly and adequately compensates the ACSC for the services or functions performed under the contract. S. Legal Construction In case any one or more of the terms, provisions, phrases or clauses contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be construed as if such invalid, illegal or unenforce- able portion had never been contained herein. 9. Entire Aereement This contract embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. 10. No Other Obligations By entering into this Agreement, the parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in parties not signatories hereto. 11. IMMUR:11Y It is expressly understood and agreed that in the execution of this Agreement, neither City nor ACSC waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of governmental powers and functions. 12. Authgljq The undersigned officers and/or agents are properly authorized to execute this Agreement on behalf of the parties hereto, and each hereby certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated (3) BY: BY: Signature —Si atur /Todd Hileman ____._ad/Tyed Name Pri, ted/Typ d !m Cily Manager Zer', C.- -fda ' n�� Title Tith-.. If ' ATTEST: CITY SECRETARY Signature /JoWfer Walters Printed/Typed Name APPROVED AS TO FORM' CITY ATTORNEY CITY OF NTON, TEXACS (4) City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEYPIN Legislation Text File #: ID 17-1654, Version: 1 AGENDA CAPTION Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing the City of Denton's membership in the "Alliance of Oncor Cities" (AOC); finding and determining that the meeting at which this resolution as passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton city Hale 41"X'IAIW�215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com DEPARTMENT: DCM: DATE: AGENDA INFORMATION SHEET Finance Bryan Langley December 12, 2017 SUBJECT Consider approval of a resolution of the City Council of the City of Denton, Texas, authorizing the City of Denton's membership in the "Alliance of Oncor Cities" (AOC); finding and determining that the meeting at which this resolution was passed was in accordance with the requirements of the Texas Open Meetings Act; making other findings and provision related to the subject; and declaring an effective date. BACKGROUND On August 15, 2017, the City Council approved Resolution No. R2017-031 denying Oncor Electric Delivery Company's application to increase rates and authoring intervention in related proceedings at the Public Utility Commission of Texas as a member of the Alliance of Oncor Cities ("AOC"). In light of Council's direction to discuss the City's participation with Atmos related rate filings with the Audit/Finance Committee, staff also opted to discuss the City's membership options for future Oncor rate filings with the Audit/Finance Committee ("Committee"). On October 24, 2017, the City Council held a work session discussion regarding the City's options for joining one of two coalitions of cities for Oncor related rate filings and other regulatory matters. The City Council directed staff to present a resolution at a future City Council meeting for the City to join the Alliance of Oncor Cities ("AOC") coalition. AOC is represented by the law firm of Herrera & Boyle, PLLC, and is comprised of 25 member cities. This coalition has no annual membership assessment and reimbursable expenses for rate filings and other regulatory matters, as applicable, are generally paid for by Oncor. Non -reimbursable expenses are generally billed to member cities on a per capita basis. Within the city of Denton, Oncor currently serves 1,252 customers (1,071 residential, 170 commercial and 11 street lights). RECOMMENDATION Staff recommends approval of the resolution. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 24, 2017, the City Council held a work session discussion and directed staff to present a resolution at a future City Council meeting for the City to join the Alliance of Oncor Cities ("AOC") coalition. On September 12, 2017, the Audit/Finance Committee recommended that staff present this matter to the City Council in a work session. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Agenda Information Sheet 2. Resolution Respectfully submitted: Chuck Springer, 349-8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance sAlegakour documentsVesolutions\1 7\a1liance of oncor cities resolution.docx RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF Df.,,NTON, TEXAS, AUTHORIZING THE CITY 01� DENTON'S MEMBERSHIP IN THE "ALLIANCE OF ONCOR CITIES" (AOC); FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS IN ACCORDANCE WITH THE REQUIREMENTS OFTHETEXAS 01)1--,,N MEETINGS ACT; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the cities in the service area of Oncor Electric Delivery have worked together collectively in a coalition to participate in the regulatory process to assure electric rates charged were just and reasonable; and WHEREAS, the nature of electric utility regulation is undergoing change; and WHEREAS, there remains a need for cities to cooperate to assure the public interest is protected and electric and other utility rates are just and reasonable; and WHEREAS, regulatory changes now require quick response in order to have meaningful input into the rate setting process; and WHEREAS, it is necessary to provide adequate resources to enable cities to act quickly, decisively, and jointly on electric utility regulatory developments; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set out in the preamble of this Resolution are in all things approved and incorporated herein as if fully set forth. SECTION 2. The City Manager, or his designee, is hereby authorized to participate in said coalition, for and on behalf of the City of Denton, Texas. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2017. CHRIS WATTS, MAYOR s:\Icgal\oui- documents\ordinances\ I 7\alliance of'oncor cities ord.doex ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: 6 C. - Page 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1683, Version: 1 AGENDA CAPTION Consider adoption of an ordinance accepting competitive proposals and awarding a best value public works contract for the construction of IOOF and Oakwood Cemetery fences for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6579 -awarded to Rockstar Welding LLC in the not -to -exceed amount of $442,873.20). City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton City Hail 215 E. McKinney Street DENTO) Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a best value public works contract for the construction of IOOF and Oakwood Cemetery fences for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6579 -awarded to Rockstar Welding LLC in the not -to -exceed amount of $442,873.20). BACKGROUND INFORMATION Funding was approved in the 2005 Capital Improvement Plan for the replacement of fences at the IOOF and Oakwood cemeteries. When fence permits were applied for, staff was notified that a historical Certificate of Appropriateness would be required to replace the fences. Staff was also informed that the chain link fences envisioned in the 2005 CIP would not be an acceptable replacement. The engineering design firm of Teague, Nall, and Perkins was hired to design the replacement fences. Their staff facilitated presentations with the Historical Landmark Commission and Denton County Historian Peggy Riddle which resulted in the design of a fence to meet the specifications noted by the Historic Landmark Commission. A Certificate of Appropriateness (COA13-0012) was applied for on May 31, 2013 and awarded on July 08, 2013 to Oakwood Cemetery stipulating that the existing chain link fence would need to be replaced with a decorative iron fence with stone columns that matched the existing WPA era stone walls in the central business district. Chain link fencing will remain in some non-focal areas of IOOF. Council has considered this topic on March 22, 2016, April 4, 2017, and again on May 2, 2017. The plans have been reviewed for compliance and permits for Oakwood (1709-0336) and IOOF (1709-0338) have been issued. This project consists of the installation of 1,960 linear feet of ornamental fencing with ball point finials and 14 stone columns as well as an arched entryway sign spanning the entry drive at IOOF Cemetery and the installation of 2,560 linear feet of ornamental fencing with ball point finials and 14 stone columns as well as an arched entryway sign spanning the entry drive at Oakwood Cemetery. Additional alternatives selected in this RFP specify that the contractor remove the existing chain link fence in the areas where the new fence is scheduled to be installed. The contract also includes the removal and replacement of 600 linear feet of chain link fence abutting Fred Moore Park athletic fields, and the addition of an 18 inch wide mow strip at the base of that fence. IOOF Add Alternate Items 23-25 will not be awarded. Requests for Proposals were sent to 321 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Eight (8) proposals were received. A Best and Final Offer (BAFO) was completed, which included a request to reduce the quantities for Oakwood add alternate line items 29-31. This resulted in a decrease in pricing for each responding vendor. Rockstar Welding LLC was ranked the highest and determined to be the best value (Exhibit 2). RECOMMENDATION Award to Rockstar Welding LLC in the not -to -exceed amount of $442,873.20. PRINCIPAL PLACE OF BUSINESS Rockstar Welding LLC Pilot Point, TX ESTIMATED SCHEDULE OF PROJECT The installation of the fencing is estimated to be completed within 134 calendar days of Notice to Proceed. FISCAL INFORMATION Funding for the replacement fences at both cemeteries was approved in the 2005 Capital Improvement Plan. This project will be funded from account 400081444.1365.40 100 in the amount of $310,846.76 and account 400081470.1365.4000 in the amount of $132,026.44. Requisition4136940 has been entered in the Purchasing software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 4.3 Provide high quality neighborhood services EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Evaluation and Pricing Sheet Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Karen Smith, 349-7100 Purchasing Manager For information concerning this acquisition, contact: Jim Mays at 349-7465. $—,873.20 $518,225.69$ Sa.s .00$M7,876.00 $516,3R.00 W2,961.00 IiE $-,-- $W2,576.00 $617,90.00 $06,483.00 $691,40.00 $697,3-8 S751,5M.69 $623,2N.00 $08,639.00 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A BEST VALUE PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF IOOF AND OAKWOOD CEMETERY FENCES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 6579 -AWARDED TO ROCKSTAR WELDING LLC IN THE NOT -TO -EXCEED AMOUNT OF $442,873.20.) 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 6579 Rockstar Welding LLC $442,873.20 (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. 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 6579 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive proposals and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved proposals and authorized contracts executed pursuant thereto. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY r BY: L- �� ti DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ROCKSTAR WELDING, LLC (RFP 6579) THIS CONTRACT is made and entered into this date , by and between ROCKSTAR WELDING, LLC, whose address is 8490 S. Hwy 377, Pilot Point, Texas 76258, 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# 6579, 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 # 6579 (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"); 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." By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this Contract in the year and day first above written. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC CONTRACTOR E�2� ocu5igned by: BY: AUTHORIZED S A E Date: 12/5/2017 Name: stephania Howard Title: CEO 940-488-4144 PHONE NUMBER stephania.howard@rockstarwelding.com EMAIL ADDRESS Rockstarwelding@aol.com TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS A Texas Municipal Corporation By: TODD HILEMAN CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY L-5 APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc usigned by: By: Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC EXHIBIT A SPECIAL TERMS AND CONDITIONS Total Contract Amount The Contract total for services shall not exceed $442,873.20. Pricing shall be per Exhibit G attached. Contract Term The Contract shall commence upon the issuance of a Notice to Proceed. Contractor shall begin work on site within fifteen (15) calendar days of receipt of Notice to Proceed. Project shall be complete within one hundred thirty-four (134) calendar days after work commences on site. Delays are further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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.dentoppurchasing.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 James Mays, City of Denton Facilities Management Department, 869 S. Woodrow Lane, Denton, TX 76205. The copy may also be emailed to Mr. Mays at jim.mays@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 payment request approved during the construction of the project shall be paid by the Owner Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 (1) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U. S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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. 1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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, 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 applicable laws, ordinances, construction codes, rules or regulations, the Prime Contractor Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 in writing. Other communications shall be similarly confirmed on written request in each case. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 entire Work. The original construction schedule shall be updated or changed to indicate Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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, Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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; 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 - 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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. 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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) £ (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3 (a) of these General Conditions; and (5) the Owner and the Architect/Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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. (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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (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. (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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: Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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. 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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; Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (2) costs of materials, supplies and equipment (but not to include off-site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect/Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. (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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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) £ (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. (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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (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 encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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: (1) employees on the Work and other persons who may be affected thereby; Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. 10.4 PUBLIC CONVENIENCE AND SAFETY Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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; 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. (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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC (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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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, 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 Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the 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, sexual orientation, 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. Contract 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC (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. 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 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. File # 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. File # 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC • 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: File # 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC • 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 File # 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC 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. that requirement will be specifications. File # 6579 If such additional insurance is required for a specific contract, described in the "Specific Conditions" of the contract DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate") -A copy of a certificate of insurance, a certificate of authority to self -insure issued by the commission, or a coverage agreement (TWCC- 81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner -operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and File # 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that File # 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self -Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. File # 6579 DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC Exhibit F Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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. File # 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC File # 6579 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC EXHIBIT G Detailed Pricina QTY Contractor Name: Rockstar Welding LLC Unit Price Total Principal Place of Business (City and State) Pilot Point, TX LS Mobilization & Demobilization for Project Corporation 1 Total calendar days to mobilize after Notice to Proceed is issued by City (maximum 14 days): 14 $4,400.00 $4,400.00 2 EA 14' Tall PIP Conc/ Stone Column Total calendar days after mobilization on site for substantial completion: 120 $17,750.00 Total days from Notice to Proceed to Substantial Completion: 134 $1,750.00 $21,000.00 2 Base Proposal amount to construct project per specifications: $297,040.00 Payment and Performance Bonds $16,625.00 Total amount to construct with bonds $ 297,040.00 Detailed Pricina QTY UOM Product Description Subcontractor Unit Price Total 1 LS Mobilization & Demobilization for Project $5,000.00 $5,000.00 1 LS Bonds (Labor and Materials & Performance) $4,400.00 $4,400.00 IOOF Cemetery 1 EA 36' wide Metal Arch- Fabricate & Install $6,800.00 $6,800.00 1,960 LF 6' Ornamental Fence with ball-point finials $39.50 $77,420.00 12 EA 6' CMU Stone Column $1,750.00 $21,000.00 2 EA 14' Tall PIP Conc/ Stone Column $8,875.00 $17,750.00 Oakwood Cemetery 1 EA 36' wide Metal Arch- Fabricate & Install $6,800.00 $6,800.00 2,560 LF 6' Ornamental Fence with ball-point finials $39.50 $101,120.00 12 EA 6' CMU/ Stone Column $1,750.00 $21,000.00 2 EA 14' Tall PIP Conc Stone Column $16,625.00 $33,250.00 1 LS All other Construction Items not noted above $2,500.00 $2,500.00 Total Base Pricing $297,040.00 1,960 LF Alt 1 - 18" wide x 6.5" deep Mow Curb with sleeves (for orn. fence) $21.06 $41,277.60 1,386 LF Alt 2 - Demolition and Removal of 6' Chain Link Fence (for orn. fence) $5.75 $7,969.50 1 LS Alt 3 - Demolish guard rail and asphalt $2,500.00 $2,500.00 1 EA Alt 7 - Double Chain -Link Gate, 13' wide $1,600.00 $1,600.00 2,560 LF Alt 8 - 18" wide x 6.5" deep Mow Curb with sleeves (for orn. fence) $21.06 $53,913.60 1,822 LF Alt 9 - Demolition and Removal of 6' Chain Link Fence (for orn. fence) $5.75 $10,476.50 600 LF Alt 10 - Demolition/ Removal of 6' Chain Link Fence (for new chain-link) $5.75 $3,450.00 600 LF Alt 1 1- 6' Chain Link Fence with bottom rail, double knuckle $15.85 $9,510.00 600 LF Alt 12 - 18" wide x 6.5" deep Mow Curb with sleeves (for new chain-link) $21.06 $12,636.00 1 1 LS JAII other Construction Items not noted above $2,500.00 $2,500.00 Total including Base and Alternates: $442,873.20 DocuSign Envelope ID: D27EAE25-6C1 l3-4AF3-852E-2Al3AD3E614DC BUSINESS OVERVIEW QUESTIONNAIRE ANT FORMS 1. Contract Information (for formal contracting purposes): Thefiollowing information will be used to write a contract, should your, be selected fear award, * Finn's Legal Name: Rockstar Welding LLC • Address: 8490 S. Hwy 377 Pilot Point, TX 76258 0 Agent Authorized to sign contract (Name): Chad Howard or Stephania Howard * Agent's email address: rockstarweldinggaol.com 2. Subsidiary of: N/A 3. Organization Class (circle): Partnership (Corporation Individual Association 4. Tax Payer ID#: 46-3600620 5. Date Established: 01/2008 6. Historically Underutilized Business: (�es or No 7, Does yourpany have an established physical presence in the State of Texas, or the City of Denton`?/ Yes;or No, in which? Both,. Our main office is located in Pilot Point, Texas (Denton County) an we work within the City of Denton. 8. Please provide a detailed listing of all products and/or services that your company provides. Rockstar Welding provides fencing, gates, openers, awnings, steel buildings, structural steel, misc. steel, powder coating and CNC cutting services. 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.) No. DocuSign Envelope ID: D27EAE25-6C1 l3-4AF3-852E-2Al3AD3E614DC 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. I LHave you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). No. 12.Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and/or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? http://www.osha.gov/pls/oshaweb/owasrch,search form?pjoc tA pe=STANDARDS&p_toc lev el=l&pjeyvalue=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: 8490 S. Hwy 377 Pilot Point, TX 76258 b. Company's majority owner principle place of business: 8490 S. Hwy 377 Pilot Point, TX 76258 c. Ultimate Parent Company's principle place of business: 8490 S. Hwy 377 Pilot Point, TX 76258 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 14. Provide details to support the evaluation criteria, includinp_ experience and delivem. Rockstar Welding offers over fifty years of combined welding and fabrication experience, as well as professional staff that exceeds the minimum qualifications set forth. We are a woman -owned business in Denton County, with a long-standing working relationship with the City of Denton. Our shop location in Pilot Point, Texas is where we fabricate, and powder coat our own fencing to ensure that our products last our clients for years to come. We purchase our materials locally, using the highest quality possible. Along with offering our fabrication and powder coating services in-house, Rockstar Welding also has mobile welding crews to assist on site, with quick response times to help get your job completed on schedule. 15.Provide details on how firm meets the minimum qualifications stated in this Main document Section 3. a. The details must be completed on this form, and shall not point to another document in the respondent's proposal. b. Sign below and return form with final submission. Rockstar Welding is registered in the State of Texas and has been in business since 2008. We have over 50 years of combined experience providing fencing, gates and openers, metal buildings, and miscellaneous steel projects to clients across North Texas and beyond. Our services have been provided to municipalities such as the City of Denton, Denton County, and City of Sanger. Rockstar Welding has an established presence in the City of Denton, as well as the Dallas/Fort -Worth metroplex, and our crews have even serviced areas such as San Antonio, Austin and. Houston. I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3. Ronksta " XA - taIrfinn I I C Qn/nn-i7 Signature Company _-imDate DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC 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 # Description 12 72" ornamental,. steel fence, welded, construction, -1/4" SO x 1.4..ga pickets with 4" spacro P, between pickets; 1-1/2" SQ x 14 ga to and bottom rails,• 3" SO x 14-ga.post; all powder coated with cast iron ball to finials and -pressed steel post cUa____ 16 72" ornamental steel fence, welded construction, 3/4" SQ x 14 ga. pickets with 4" spacing between pickets, 1-1/2" SQ x 14 ga to and bottom rails,• 3" SO x 14-ga post; all powder coated with cast iron ball to finials and pressed steel post caps The above exceptions and clarifications (and any additional pages identified) are the ONLY exceptions to the specifications, General Provisions and Terms and Conditions in Exhibit 2, and sample contract to this solicitation. I understand that the City may not accept additional exceptions produced after final submission of this proposal, Signature 7�� Rockstar Weding LLC 10/30/2017 Company M No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature Company MEN DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC The City of Denton desires to avail itself of the benefits of Section 252.0435 of the Local Government Code, and consider the safety records of potential contractors prior to award of City contracts. Pursuant to Section 252.0435 of the Local Government Code, the City of Denton has adopted the following written definition and criteria for accurately determining the safety record of a respondent prior to awarding City contracts, The definition and criteria for determining the safety record of a respondent for this consideration shall be: The City of Denton shall consider the safety record of the respondent in determining the responsibility thereof: The City may consider any incidence involving worker safety or safety of the citizens of the City of Denton, be it related or caused by environmental, mechanical, operational, supervision or any other cause or factor. Specifically, the City may consider, among other things: a. Complaints to, or final orders entered by, the Occupational Safety and Health Review Commission (OSHRC), against the respondent for violations of OSHA regulations within the past three (3) years. b. Citations (as defined below) from an Environmental Protection Agency (as defined below) for violations within the past five (5) years. Environmental Protection Agencies include, but are not necessarily limited to, the U.S. Army Corps of Engineers (USACOE), the U.S. Fish and Wildlife Service (USFWS), the Environmental Protection Agency (EPA), the Texas Commission on Environmental Quality (TCEQ), the Texas Natural Resource Conservation Commission (TNRCC) (predecessor to the TCEQ), the Texas Department of Health (TDH), the Texas Parks and Wildlife Department (TPWD), the Structural Pest Control Board (SPCB), agencies of local governments responsible for enforcing environmental protection or worker safety related laws or regulations, and similar regulatory agencies of other states of the United States. Citations include notices of violation, notices of enforcement, suspension/revocations of state or federal licenses or registrations, fines assessed, pending criminal complaints, indictments, or convictions, administrative orders, draft orders, final orders, andjudicial final judgments. C. Convictions of a criminal offense within the past ten (10) years, which resulted in bodily harm or death. d. Any other safety related matter deemed by the City Council to be material in determining the responsibility of the respondent and his or her ability to perform the services or goods required by the solicitation documents in a safe environment, both for the workers and other employees of respondent and the citizens of the City of Denton. In order to obtain proper information from respondents so, that City of Denton may consider the safety records of potential contractors prior to awarding bids on City contracts, City of Denton requires that respondents answer the following three (3) questions and submit them with their submissions: DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC Has the respondent, or the firm, corporation, partnership, or institution represented by the respondnet, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of OSHA within the past three (3) years? YES- NO X If the respondent has indicated YES -for question number one above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such citation: Date of offense, location of establishment inspected, category of offense, final disposition of offense, if any, and penalty assessed. 1946 llj[�Mll Has the respondent, or the firm, corporation, partnership, or institution represented by the respondent, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of environmental protection laws or regulations, of any kind or type, within the past five years? Citations include notice of violation, notice of enforcement, suspension/revocations of state or federal licenses, or registrations, fines assessed, pending criminal complaints, indictments, or convictions, administrative orders, draft orders, final orders, and judicial final judgments. YES- Na X If the respondent has indicated YES for question number two above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such conviction: Date of offense or occurrence, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed. QUESTION THREE Has the respondent, or the firm, corporation, partnership, or institution represented by respondent, or anyone acting for such firm, corporation, partnership, or institution, ever been convicted, within the past ten (10) years, of a criminal offense which resulted in serious bodily injury or death? YES NO X If the respondent has indicated YES for question number three above, the respondent must provide to City of Denton, with its submission, the following information with respect to each Such conviction: Date of offense, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed. DocuSign Envelope ID: D27EAE25-6C1 l3-4AF3-852E-2Al3AD3E614DC 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: Denton County LOCATION: 750 S. Ma hill Rd, Suite B 121 Denton, TX 76208 CONTACT PERSON AND TITLE: Chris Matheson. Construction Facilities Manager TELEPHONE NUMBER: 940-367-4489 SCOPE OF WORK: Installed catwalks, landines for the Horn Building. guardrails, and repairs on existing handrails CONTRACT PERIOD: 2013 - REFERENCE TWO GOVERNMENT/COMPANY NAME: Caprock Canyons State Park and Trailway LOCATION: 850 State Park Road., Quitaque, TX 79255 CONTACT PERSON AND TITLE: Rebecca Miller Administrative Assistant for TPWD TELEPHONE NUMBER: 806-455-1492 SCOPE OF WORK: Fabricated (70) 12' triangulated swing gates for the ark . ... ............ CONTRACT PERIOD: 2016 REFERENCE THREE GOVERNMENT/COMPANY NAME: City of Sanger LOCATION: 201 Bolivar, Sanger, TX 76266 CONTACT PERSON AND TITLE: Jim Bolz, Water/Wastewater Suverintendent TELEPHONE NUMBER: 940-458-2571 SCOPE OF WORK: Installed a I OxI4 metal building CONTRACT PERIOD: 2015 DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC Please detail three (3) of the most recent projects your firm has completed: Project #1 Name ofProject: City of Denton Police Department Parking Lot Fence Project Owner Name, Address and Phone Number: City of Denton, 869 S. Woodrow Ln, Denton, TX 76209 940-349-7755 (Herman Lawson) Original Contract Amount: $36,000.00 Final Contract Amount: $36,000.00 Contract Time Allotted (Calendar Days): 90 days Start Date for Project: 07/2017 Final Completion Date for Project: 08/2017 Number of Days to complete (calendar days): 60 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered. Rockstar Welding fabricated and installed 4pprox. 600 FT of 72" ornamental iron fence with triad finals around the parking lot of the City of Denton Police Department, along with approx.. 250 FT of 6' cedar board -on -board fencing. We also fabricated two 25' roller gates and installed with electric. openers, Grnamental iron fencing is powder coated Gloss Black. DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC Project #2 Name of Project: US Aviation Hangars at the Denton Airport Project Owner Name, Address and Phone Number: US Aviation, 5000 Airport Rd. Denton, TX 76201 (RMI, Inc.) 940-566-6406 (Russell Madden) Original Contract Amount; $120,000.00 Final Contract Amount: $150,000.00 Contract Time Allotted (Calendar Days): 180 Start Date for Project: 08/17/17 Final Completion Date for Project: 11/17/17 Number of Days to complete (calendar days): 90 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered. Re -build and install ain2lane hangar doors measuring 20' x 30', reskin damaged hangars with matching r - panel and trim. DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC Project #3 Name of Project: City of Denton Visual Arts & Oakwood Recreation A/C Fencing Project Owner Name, Address and Phone Number: City of Denton, 400 E. Hickory Street, Denton, TX 76201 Herman Lawson, 940-349-7755 Original Contract Amount: $2,700.00 Final Contract Amount: $2,700.00 Contract Time Allotted (Calendar Days): 30 Start Date for Project: 08/2017 Final Completion Date for Project: 09/2017 Number of Days to complete (calendar days): 20 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered, Rockstar Welding fabricated and installed 72" ornamental iron fencing around the A/C units with custom -gates...Fencing is powdpr coated Gloss Black, DocuSign Envelope ID: D27EAE25-6C1 B-4AF3-852E-2ABAD3E614DC CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with lor�overnmental 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. 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 jniorn 2fete or inaccurate.) J3Name 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.' F-1 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? El Yes 0No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? E-1 Yes El No D, Describe each employment or business and family relationship with the local government officer named in this section. 4 L^j I have no Conflict of Interest to disclose. 10/30/2017 Signature of vendor doing business with the governmental entity Date DocuSign Envelope ID: D27EAE25-6C1 l3-4AF3-852E-2Al3AD3E614DC The undersigned agrees this submission becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the specification, drawings, exhibits and other documents; the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of materials and equipment; and all other matters that will be required for the work before submitting a response. In submitting a response the undersigned further understands that the work required is to provide construction of the project that functions as described in the specification. The undersigned understands that all requirements of the construction may not be described in every detail and agrees to provide labor, tools, material and equipment necessary to complete all construction to make the project functional as described in the specification and drawings before submitting a response. The undersigned agrees, if this submission is accepted, to famish 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 duty authorized to execute this contract, that this submission has not been prepared in collusion with any other respondent, nor any employee of the City of Denton, and that the contents of this submission have not been communicated to any other respondent or to any employee of the City of Denton prior to the acceptance of this submission. Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section I q se ., and which arise under the antitrust laws, of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, et se 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: iLttD://www.citvofdenton.com/index.asl)X?Daae-397 to ensure they have downloaded and signed all addenduni(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 tine in this submission will be investigated, with my full permission, and that any misrepresentations or omissions may cause my submission to be rejected. Acknowledge receipt of following addenda to the solicitation: Addendum No I Dated —10/24/17 Received 10/25/17 Addendum No 2 Dated Received Addendum No 3 Dated Received NAME AND ADDRESS OF COMPANY: Rockstar Welding LL,C 8490 S. Hwy 377 Pilot Point, TX 76258 Tel. No. 940-488-4144 Email. —rockstarwelding@aol.com AUTHORIZED REPRESETATJVE: Signature Date 1 QMO/2017 Name Chad Howard Title President Fax No, NA DocuSign Envelope ID: D27EAE25-6C1l3-4AF3-852E-2Al3AD3E614DC Docusign City Council Transmittal Coversheet RFP 6579 File Name Construction of iOOF and Oakwood Cemetery Fences Purchasing Contact Rebecca Hunter City Council Target Date 12/12/2017 Contract Value 442,873.20 Piggy Back Option No Contract Expiration Ordinance Certificate Of Completion Envelope Id: D27EAE256C1 B4AF3852E2ABAD3E614DC Subject: City Council Docusign Item - 6579 Source Envelope: Document Pages: 94 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -06:00) Central Time (US & Canada) Record Tracking Status: Original 12/5/2017 1:45:27 PM Signer Events Jamie Cogdell jamie.cogdelI@cityofdenton.com Senior Buyer City Of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Stephania Howard stephania.howard@rockstarwelding.com CEO Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/5/2017 3:32:25 PM ID:4aOb3c99-bd1d-4fc2-ad4f-e195a83079e7 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman todd.hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jamie Cogdell Jamie. Cogdel I@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 rb—ftmed ey: Using IP Address: 107.77.199.224 Signed using mobile E0WV$19..d py , 597253BAC456489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jamie Cogdell 901 B Texas Street Denton, TX 76209 Jamie. Cogdel I@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/5/2017 1:55:29 PM Viewed: 12/5/2017 1:55:45 PM Signed: 12/5/2017 1:57:12 PM Sent: 12/5/2017 1:57:14 PM Viewed: 12/5/2017 3:32:25 PM Signed: 12/5/2017 3:34:24 PM Sent: 12/5/2017 3:34:29 PM Viewed: 12/5/2017 4:24:37 PM Signed: 12/7/2017 9:22:46 AM Sent: 12/7/2017 9:22:48 AM Signer Events Signature Timestamp Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Julia Winkley julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/5/2017 3:34:28 PM Sent: 12/5/2017 3:34:28 PM Carbon Copy Events Status Timestamp Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign James Mays jim.mays@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 9:22:48 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Stephania Howard, Todd Hileman 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 DEYPIN Legislation Text File #: ID 17-1684, Version: 1 AGENDA CAPTION Consider adoption of an ordinance accepting competitive bids and awarding a contract for the supply of Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor 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 (IFB 6552 -awarded to Wesco Distribution in the three (3) year not -to -exceed amount of $140,000). City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton _ city Hale 41"I&IMMM215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance accepting competitive bids and awarding a contract for the supply of Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor 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 (IFB 6552 -awarded to Wesco Distribution in the three (3) year not -to -exceed amount of $140,000). BACKGROUND Denton Municipal Electric (DME) has substation projects approved in its five year Capital Improvement Plan that will require installation of 2500 MCM AAC conductor. This conductor is used in substations for the interconnection of equipment and bus. For substation construction projects, 2500 MCM AAC is used as jumpers between transmission lines to bus, and switches to breakers. As these commodities are "common stock items" in the Distribution Center working capital inventory under City of Denton General Government, they are not reviewed by the Public Utilities Board. The Distribution Center orders goods in coordination with DME for specific projects under construction. The items are temporarily stored in the Distribution Center until they are needed on the jobsite and then transferred to DME through an inventory management system. The items are ordered as needed, taking into account the contracted lead time and the need by date by the using department. The need by date is established by ensuring that citizen, customer, and developer timelines all form the basis of when the construction work must be complete by with an operational City of Denton service; furthermore, it factors in City of Denton construction crew schedules and construction sequencing with job site contractors. Invitations for Bid were sent to 321 prospective suppliers for these items. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Two (2) bids were received, with one firm offering two solutions. Staff recommends awarding to the Wesco Distribution as the lowest responsible bidder meeting specification. Line Item 3 will not be awarded as no pricing was submitted by the vendor. RECOMMENDATION Award a contract for Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor to Wesco Distribution in the three (3) year not -to -exceed amount of $140,000. PRINCIPAL PLACE OF BUSINESS Wesco Distribution Tulsa, OK ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The items in this bid will be funded out of the Distribution Center working capital account and charged back to the using department. The costs for material purchased under the proposed agreement will be funded out of amounts budgeted for specific projects. The work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Tabulation Sheet Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Karen Smith, 349-8436 Purchasing Manager For information concerning this acquisition, contact: Karen Smith at 940-349-8436 IFB 6552 -Tabulation Sheet for Supply of Electric Utility Lupine (2500 MCM AAC) Transmission Conductor Reel Information 2 1 1 INon-Returnable Assbembled wood reel included I I not offered I I included 4 cold rolled steel with I-beam $ 1,900 $ 1,900 not offered Return TlmeFrame 90 days 90 days Wesco Anixter - Offer A Anixter - Offer B Product Proposal Pricing (FOB DESTINATION): Tulsa, OK Corinth, Tx Corinth, Tx Reel Estimated Estimated Estimated EST. EST. ANNUAL Item # Product Description Unit Price Delivery ARO Unit Price Delivery ARO Unit Price Delivery ARO CITY. Length (Weeks) (Weeks) (Weeks) 1 9,000 FT Southwire 2500 AAC Aluminum Conductor "Lupine" 3000 $ 5.03 14 $ 5.25 13 $ 5.35 13 Total Estimated Annual Cost I $ 45,270.00 $ 47,250.00 $ 48,150.00 Reel Information 2 1 1 INon-Returnable Assbembled wood reel included I I not offered I I included 4 cold rolled steel with I-beam $ 1,900 $ 1,900 not offered Return TlmeFrame 90 days 90 days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE SUPPLY OF ELECTRIC UTILITY 2500 MCM AAC "LUPINE" TRANSMISSION CONDUCTOR FOR DENTON MUNICIPAL ELECTRIC TO BE STOCKED IN THE CITY OF DENTON DIS'T'RIBUTION CENTER; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (IFB 6552 -AWARDED TO WESCO DISTRIBUTION IN THE THREE (3) YEAR NOT -TO -EXCEED AMOUNT OF $140,000.) WHEREAS, the City 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 and City Ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies, or services as shown in the "Bid Proposals" submitted therefor; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 6552 Wesco Distribution $140,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to pur- chase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute a written contract in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Bid Proposal and related documents and to extend that contract as determined to be advantageous to the City of Denton. 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 IFB 6552 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 bids. SECTION 6. That 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 BY: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND WESCO DISTRIBUTION (IFB 6552) THIS CONTRACT is made and entered into this date , by and between WESCO Distribution, a corporation, whose address is 225 W., Station Square Dr., Suite 700, Pittsburgh, PA 15219, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's IFB #6652, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's IFB 6552 (Exhibit "B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Supplier's Proposal (Exhibit "E"); 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 SUPPLIER 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 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 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. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: raocuSRgned by: (h'6�a AUTHORIZED A RE Name: Brent coapland Title: 806-679-4449 PHONE NUMBER RCoapland@wescodist.com EMAIL ADDRESS rcoapland@wesco.com TEXAS ETHICS COMMISSION CERTIFICATE NUMBER ATTEST: CITY OF DENTON, TEXAS JENNIFER WALTERS, CITY SECRETARY TODD HILEMAN CITY MANAGER APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc;usigned by: �s f BY: Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit 1 are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasing@cilyofdenton.com with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. 4. Contract Terms The contract term shall be for a one (1) year period. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. Materials and services undertaken pursuant to this solicitation will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination" in Exhibit 2. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. 5. Price Escalation and De-escalation The City of Denton will implement an escalation/de-escalation metals price adjustment at time of order using the prior month's metal average. The escalation/de-escalation will be based upon the following metal bases: Aluminum Base = LME with Midwest Adder Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 The price of each product will be increased or decreased based upon the following metals adjustment formulas: Conductor or Cable priced per CWT: Unit price adjustment = (%Aluminum content) x (Amount of increase or decrease of the Aluminum Metal Base / CWT) Should the change exceed or decrease a minimum threshold value of +/-I%, then the stated eligible prices shall be adjusted in accordance with the unit price change adjustment derived from the above formulas. It is the Vendor's or the City's responsibility to request a price adjustment at the time of each order in writing. If no request is made prior to shipment, then it will be assumed that the original contracted price will be in effect. The vendor must submit or make available the manufacturer's pricing sheet used to calculate the proposal which includes the percent of each type of metal in all products, to participate in the escalation/de- escalation clause. Should any manufacturer utilize their own proprietary or alternate metals index, any unit price adjustments requested will be verified by the City of Denton and if found valid then the adjustments will be pro -rated against the LME metal base described above. Escalation documentation should be sent by e-mail to: purchasingrAcityofdenton.com The request can be sent by e-mail to: purchasingAcityofdenton.com noting the solicitation number. Or mail to: City of Denton Attn: Purchasing Manager RFP # 6552 901B Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349-7100 The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $140,000. Pricing shall be per Exhibit E attached. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 7. Delivery Lead Time Products or services will be delivered as needed over the contract term after the receipt of order from the City. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 F,Yhihit r City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box I 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. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non -conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 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. £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. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY -PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables, or replace the non -conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 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 (3 0) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made -for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made -for -hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made - for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made -for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 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, Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON -SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub -awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non -Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - IOd) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http://www.dol.gov/whd/contracts/d`bra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD -2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on- site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government -wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the 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 Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions Contract 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf_info form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasing@cilyofdenton.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 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 Imo4OMI1:11aM IFB 6552 - Pricing Sheet for Supply of Electric Utility Lupine (2500 MCM AAQ Transmission Conductor Respondent's Business Name: WESCO Distribution Principal Place of Business (City and State) Tu Isa, OK The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Product Proposal Pricing (PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED ROM DESTINATION): Reel Information for AAC Lupine Southwire EST. Wire Total Weight Unit Price Item # Item # DC Item # ANNUAL UOM Product Description Reel Length (Non -Returnable Extended Price Estimated Delivery (Reel and Wire) OTY Reels) ARO (Business Days) 1 28024630 9,000 1 FT Southwire 2500 AAC Aluminum Conductor "Lupine" 3000 FT. $ 5.03 $ 45,270.00 Stock to 14 wks Reel Information for AAC Lupine Southwire Flange Wire Total Weight Refundable Timeframe Reels Item # Description of Reel and Lagging Reel Type Must Be Returned Designation Diameter Length (Reel and Wire) Deposit Price (Months) 2 A-170 90" 3000 Non Returnable Assembled Wood 7894 Wood $ - -- 3 Non Returnable ----- Steel----- 4 S-187 1 90" 1 3000 Cold rolled steel with I-beam 8124 Returnable Steel $ 1,900.00 1 Standard 90 days* DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 :EXHIBIT E Sthwwe Aluminum Price Adjustment Policy Southwire's aluminum base is the average of the Metals Week U.S. Transaction daily prices for the previous month. Invoice prices will be adjusted by the following procedures: CONDUCTOR AND CABLE PRICED PER CWT Unit Price Adjustment = (% of aluminum content) x (Amount of change of the aluminum base per CWT) CONDUCTOR AND CABLE PRICED PER MFT Unit Price Adjustment = (Weight of aluminum per MFT divided by 100) x (Amount of change of the aluminum base per CWT). DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 I. :EXHIBIT E WESCO City of Denton RFP #6552 — Transmission Conductor -BUSINESS OVERVIEW QUESTIONNAIRE 1. Contact Information, (for formalbontraefing purposes): Firm's Legal Name: WESCO jDistribution, Inc. Address: 225 W Suite i Pittsbi: Agent's email address: 2. Subsidiary of.- . WESCO International, Inc. Station Square Drive PA 15219 Brent Coapland bco aplan d(a,wesco . co m 3. Organization Class (circle)': 'Partnership Corporatibn Individual Assocr'ation. WESCO Distribution is a Corporation. 4. Tax Payer ID#: E 25-1723345 5. Date. Estabfished: WESCO was originally founded in 1922. The company has operated under its current name since 1994 (WESCO Distribution, Inc.). 6. Historically Underutilized Business.- " Yes or No No. Page I 1 WESCO Distribution, Inc. Proprietary and Confidential DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E WESCO DISTRIW rION4 City of Denton RFP #6552 — Transmission Conductor I 7. Does your company have an established physical pre.sence,in the 'State of Texas, or the 'City of'Denton ? 'Yes or No, ink which? . Yes. WESCO operates over SO branch locations across Texas including 4 dedicated solely to supporting our utility customers. S. Please provide aVetailed'listih� of all products and/or services that your company provides. WESCO is the nation's largest provider of products and supply chain services for the utility industry. Products Wire, Cable, Conduit, Raceway, Steel Structures & Assemblies, Junction Boxes, Enclosures, Grounding Devices, Connectors & Lugs, Fittings & Fasteners, Tape, Cable Ties & Markers, Receptacles & Switches, Puses, Circuit Breakers, Controls, Relays, Timers, Transformers, Fans & Ventilation, Hand & Power Tools, MRO Supplies, Surge', &, Power Protection, Lamps (bulbs) and Light Fixtures. Services ■ Dedicated alliance m ■ Back office systems i ■ Emergency storm su ■ Facility outage suppi ■ Product sourcing an{ ■ Project services ■ Vendor managed inv ■ Warehouse manager ■ Kitting services ■ LEAN Value Creatior 9 Has your company filed or bei Owneron a'contract Within4h. other company name?.If so pi Include lawsuits.where Ownej As a large Fortune 500 c litigation for various rea that would affect our su tegration category management tory at and logistics i. named in anylitigafion involving your company and the past fivei yearsunderyour current company name or any vide details.oFthe,issues and resolution if available. vas involved )any, WESCO is sometimes named a party in . We are not currently involved in any litigation t for the City. Page 1 2 WESCO Distribution, Inc. Proprietary and Confidential DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 ,EXHIBIT E WESCO DI.STR[Bli'fION'6' City of Denton RFP #6552 — Transmission Conductor 10. Have you ever defaulted on or' ailed to; complete a contract:under your current company name or any other company n me? if so where and why?,'G&ve narne and telephone number of Owner.. To the best of our knowledge, no. As a large public company with many divisions, material contract `defaults can be found in our public filings on www.wesco.com. i i 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): To the best of our knowledge, WESCO has not had a contract terminated by a customer similar to the City. As. a large public company with many divisions, material contract terminations can be found in our public filings on www.wesco.com. E i f 12. Has your company m' ' plemented'an Employee Health andiSafety.Program: compliant With 29 CFR '1910 "General Indus -try Standards and/or 29 -CFR.9926 "General Construction Standards" as they 'app ly o your Company's co stomary.activifies? lite %Itivww.asha. ov/ Is%gshaweb/ow srch.search o�T? doe .&pe=STANDARDS& loc level-- & ke value -1926 .. f Yes. WESCO's Health and Safety program meets general OSHA industry standards. WESCO Distribution; Inc. is a subsidiary of WESCO International, Inc., a public company listed on the NYSE under the symbol "WCC". The principle place of business for both units is: 225 West Station Square Drive Page 1 3 WESCO Distribution, Inc. Proprietary and Confidential DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E WESCO MSTREr r]oN3 Suite '700 Pittsburgh, PA 15219 City of Denton RFP #5552 — Transmission Conductor Experience WESCO Distribution is one over 90 years of experience Recognizing the unique nee through WESCO's Utility G: The Utility Group conducts power and IOU customers References We have provided three D" State of Texas Registra WESCO is registered and 30 company -wide branch any subcontractors to pei copy of our State of TX Cf Authorized Distributor WESCO is an authorized I certify that our firm meets document, section 3. Signature the country's largest electrical distributors with widing distribution hardware and accessories. of the utility industry, the City will be supported p and dedicated utility branch locations in Texas. =r $1 billion in business annually with public >ss the country. as requested on this form under "Attachment licensed to conduct business in Texas and has ions in the state. WESCO will not be utilizing the services of this contract. We have attached a for of the pr®'ducts offered in our bid. minimum qualifications as stated in this Main WESCO Distribution, Inc. Proprietary and Confidential September 26th, 2017 Date Page 1 4 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E City of Denton IFB for Supply of Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor SUBMISSION EXCEPTIONS 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 # Description 0 r Sov r IV All,'E PeI46E� A-DJ-UsTME-,V r 91 -IG Y A-� Iw eHg-p The above exceptions or clarifications (and any additional pages identified) are the ONLY exceptions to the specifications, General Provisions and Terms and Conditions in Exhibit 2, and sample contract to this solicitation. I I understand that the City may not accept additional exceptions produced after final submission of this proposal. De Sig ature Company Date No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature Company Date IFB 6552 DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E aw City of Denton >SC [` RFP #6552 -- Transmission Conductor Z3iSii2l�iU't'IC� I i E f 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. ........... . j REFERENCE . ......... ONE - GOVERNMENT/ COMPANY NAME: puke Energy LOCATION: NC, SC, FL, IN, OH, K f CONTACT PERSON AND TITLE: Bob Stevens, Director - Inventory Services and Integrated Supply E E TELEPHONE NUMBER: 950-373-2265 SCOPE OF WORK: T&D, MRO, Integrated Supply Service CONTRACT PERIOD: Current � .. RE FERENCE .TWO GOVERNMENT/ COMPANY NAME: ELCRA LOCATION: TX CONTACT PERSON AND TITLE TELEPHONE NUMBER: 512 -730 - SCOPE OF WORK: T&D and subst Renewable Energy Zone) project in CONTRACT PERIOD: Current Nutt, Materials Management ion materials for the CREZ (Competitive WE"SCO Distribution, Inc. Proprietary and confidential DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E GOVERNMENT/ COMPANY NAME Cooperative LOCATION: Texas CONTACT PERSON AND TITLE: V TELEPHONE NUMBER: 361-575-I SCOPE OF WORK: Substation Ste CONTRACT PERIOD: No contract, th Texas Electric Kezar, General Manager 1 ividual projects WESCO Distribution, Inc. Proprietary and' Confidential DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 IEEXHIBIT E I CONFLICT OF INTEREST QUESTIONNAIRE I CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local o` ernmental entity This questionnaire reflects changes made to the law by #.8. 1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records ad[ninistrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. Doug Bruning 2El Check this box if you are filing an update to a previoufly filed questionnaire. (The law requires that you file an updated completed quest jonnaire with the appropriate filing authority not later than the 7"' bn9ilICSS day aticr the date the originally filed questionnaire becomes incom leteor inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. i E Name of Officer This section, (item 3 including subparts A, B, C & D), must be competed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receivingar likely to receive taxable income, other than investment income. from the tiler of the questionnaire? F1 Yes 0 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable incothe is not received from the local governmental entity? i Yes No " C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer scn es .Is an officer or director, or holds an ownership of 10 percent or more? Yes No D. Describe each affiliation or business relationship. 4 I have no Conflict of Interest to disclose. 5 September 261h2017 U DocuSign Envelope ID: B67DOE6D-4A1A-4BO6-BA8B-228931AC7896 EXHIBIT E City of Denton 1FB for Supply of Electric Utility 2500 MCM AAC "Lupine" Transmission Conductor 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 sea., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01,e"se The undersigned affirms that they have read and do understand the specifications, all exhibits and attachments contained in this solicitation package. The undersigned agrees that the solicitation package posted on the website are the official specifications and shall not alter the electronic copy of the specifications and/or pricing sheet (Exhibit 1), without clearly identifying changes. The undersigned understands they will be responsible for monitoring the City of Denton Purchasing Website at: http://www.cityofdenton.com/index.aspx?page=397 to ensure they have downloaded and signed all addendum(s) required for submission with their response. 1 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 Received Addendum No 3 Dated Received NAME AND ADDRESS OF COMPANY: VV Esca 916T -F-160-103, 1 G• s9 Tµ 13 0 47 sTlz r TVLS/ K- -7q - 7 q f i 4 Tel, No. 915 " 9 q D — q371-3 Email, d 17Y Ur I nq Wes ez Gvr'n IFB 6552 AU'T'HORIZED REPRESENTATIVE: Signature D Date /v Name D15144, 8 9LIN /A 6 Title .59 SALFFS 4SSOL IA-772�- Fax No. _! if — % `f 0 — #3&-3 Certificate Of Completion Envelope Id: B67DOE6D4AlA4BO6BA8B228931AC7896 Subject: City Council Docusign Item - 6552 Electric Utility 2500MCM "Lupine" Conductor Source Envelope: Document Pages: 37 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 11/29/2017 2:41:27 PM Signer Events Rebecca Hunter rebecca.hunter@cityofdenton.com Assistant Purchasing Manager City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Brent Coapland RCoapland@wescodist.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 12/1/2017 2:08:42 PM ID:54cb5cb4-de5d-4876-ad43-227bc7b254cc 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) Electronic Record and Signature Disclosure: Holder: Rebecca Hunter rebecca.hunter@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 �� gaxu9Vgn®jja^^ ,,Y: C,6 BBBAHAW95347'1.... Using IP Address: 12.165.26.81 Ef9WU$19..d py , 597253BAC458489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Rebecca Hunter 901 B Texas Street Denton, TX 76209 rebecca.hunter@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 11/29/2017 3:09:33 PM Viewed: 11/29/2017 3:10:09 PM Signed: 11/29/2017 3:12:14 PM Sent: 11/29/2017 3:12:16 PM Resent: 12/1/2017 1:52:30 PM Resent: 12/1/2017 2:00:59 PM Resent: 12/4/2017 12:34:04 PM Viewed: 12/1/2017 2:08:42 PM Signed: 12/4/2017 12:40:00 PM Sent: 12/4/2017 12:40:03 PM Viewed: 12/4/2017 1:33:51 PM Signed: 12/4/2017 1:33:55 PM Sent: 12/4/2017 1:33:57 PM Signer Events Signature Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Timestamp In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Carbon Copy Events Status Jamie Cogdell Jamie.cogdelI@cityofdenton.com COPIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Timestamp Timestamp Timestamp Timestamp Sent: 11/29/2017 3:09:33 PM Viewed: 11/30/2017 6:31:35 AM Julia Winkley Sent: 12/4/2017 12:40:02 PM julia.winkley@cityofdenton.com COPIED Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri Thurman Sent: 12/4/2017 12:40:02 PM sherri.thurman@cityofdenton.com COPIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Carbon Copy Events Status Timestamp Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Cheek laura.cheek@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Laura Hermosillo Laura. hermosillo@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Doug Bruning DBruning@wescodist.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/4/2017 1:33:57 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 1:59:03 PM Parties agreed to: Brent Coapland, Todd Hileman 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 DEN'rIN Legislation Text File #: ID 17-1636, Version: 1 AGENDA CAPTION Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the University of North Texas (UNT) for the purpose of providing for cost and duty allocation of a traffic study to assess the impact of street closures within the UNT campus for a total cost of $224,700 and authorizing the expenditure of funds up to $112,350. City of Denton Page 1 of 1 Printed on 12/8/2017 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 CM: Mario Canizares DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an Inter -Local Agreement with the University of North Texas (UNT) for the purpose of providing for partial cost (up to $112,350) and duty allocation of a traffic study with a total cost of $224,700, to be conducted to assess the impact of street closures within the UNT campus. BACKGROUND INFORMATION The UNT campus has been an integral part of the City of Denton for a long time. In 2013 UNT prepared a Campus Master Plan which envisioned the campus core as a pedestrian and bicycle friendly area. Subsequently, in 2015 UNT developed its Transportation Master Plan that outlined the implementation of the overall vision for the campus. As part of the Transportation Master Plan, UNT is interested in closing (partially or fully) certain portions of City street segments that traverse through the campus. In order to improve communication and better coordinate projects, City and UNT staff have conducted a series of monthly meetings since May 2017. During these meetings, the proposed street closures were discussed and it was agreed by staff on either side, that a traffic impact analysis was required to assess the implications of street closures within and around the UNT campus. Understanding the impacts associated with the proposed street closures and developing a plan to address deficiencies in the circulation system has long term benefits for UNT campus as well as the City. As such, UNT and City agreed on splitting the total cost for conducting this impact analysis. An Inter -Local Agreement for sharing this cost was prepared and reviewed by UNT and City staff (legal). Staff recommends approval of the attached agreement (Exhibit 1) as it would help fund the traffic study which will identify existing and future improvements triggered due to the closure of street segments within the UNT campus. OPTIONS 1. Approve the Inter -Local Agreement with UNT for providing partial funding for conducting a Traffic Study. 2. Reject the Inter -Local Agreement with UNT for providing partial funding for conducting a Traffic Study. RECOMMENDATION Staff recommends approval of the Inter -Local Agreement with the University of North Texas (UNT) for the purpose of providing for partial cost (up to $112,350) and duty allocation of a traffic study with a total cost of $224,700, to be conducted to assess the impact of street closures within the UNT campus. FISCAL INFORMATION The City's portion of the total cost will be funded from savings related to installation of new traffic signals along FM 2181 (Teasley Lane). These new signals were originally not funded by TxDOT/County of Denton as part of the widening project along FM 2181 (Teasley Lane). As such, staff requested and received funding as part of supplemental funding request for fiscal year 17-18. PRIOR ACTION/REVIEW (Council, Boards, Commissions) 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: 2.2 Enhance connectivity and seek solutions to improve mobility EXHIBITS Exhibit 1: Inter -Local Agreement with UNT for providing partial funding for conducting a Traffic Study Exhibit 2: Ordinance Respectfully submitted: Galen Gillum Director of Capital Projects Prepared by: Pritam Deshmukh Senior Engineer — Traffic STATE OF "TEXAS § COUNTY OF DENTON § INTERLOCAL COOPERATION AGREEMENT BETWEEN THE UNIVERSITY OF NORTH TEXAS AND THE CITY OF DENTON, TEXAS THIS AGREEMENT is made and entered into by and between The University of North Texas (hereinafter "UNT") and the City of Denton, "Texas, a home rule municipal corporation (hereinafter "City"). UNT and the City are referred to individually as "Party" and are collectively referred to herein as "Parties." This Agreement is for the purpose of providing for cost and duty allocation of a traffic study to be conducted to assess the impact of street closures within the UNT campus (hereinafter "Project"); and WHEREAS, UNT and the City mutually desire to be subject to the provisions of Texas Government Code Chapter 791, the Interlocal Cooperation Act, which provides authorization for a local government to contract with one or more local governments or other state agencies to perform governmental functions and services under the terms of the Act; and WHEREAS, UNT intends to implement its recently adopted master plan, which includes proposals for street closures and changes in land use densities; and WHEREAS, the City is in the process of preparing an area plan for the region adjacent to the UNT campus; and WHEREAS, the City and UNT agree a Traffic Impact Analysis ("TIA") to identify the impacts of the proposed changes on the surrounding transportation system is proper, and NOW THEREFORE, the City and UNT, for the mutual consideration stated herein, agree and understand as follows: WITNESSETH: I. This agreement shall be effective as of 2017 and continue unless terminated as provided herein or upon the completion of the TIA and payment of all outstanding invoices related thereto. H. Pursuant to Texas Government Code § 791.011, the Parties hereto agree that the purpose of this Agreement is to ensure that certain government functions and services in the area of requesting and conducting a TIA related to future street changes is completed. The Parties further agree that each of them is authorized to perform the functions and services contemplated under this Agreement. III. City and UNT agree that the scope of the TIA shall be as more fully described and depicted in Exhibit "A" attached hereto, and incorporated herein and if set out fully. City shall be responsible for hiring the traffic consultant charged with conducting and completing the TIA under the guidelines of Exhibit "A." City and UNT shall share respectively all costs associated with the TIA, each Party hereby responsible for up to $112,350 each of the total cost of $224,700 which includes $174,700 of basic costs and $50,000 of potential additional services.. Neither party shall exercise the option for the $50,000 in additional services without written consent of the City Traffic Engineer and Associate Vice President of Facilities at UNT. IV. City agrees that it is responsible for direct payment of invoices from the traffic consultant. UNT agrees that it will provide payment of up to $112,350 directly to the City within thirty (30) days of UNT's receipt of the traffic consultant's invoice from the City at the address below. V. In the performance of their respective duties hereunder, the Parties hereto and their respective employees and agents, are at all times acting and performing as independent contractors of each other. No Party will have the authority to act for or bind another Party in any respect or to incur or assume any expense, debt, obligation, liability, tax, or responsibility on behalf of or in the name of another Party hereto, with the exception of the City's hiring and retention of a traffic consultant as contemplated herein, wherein UNT agrees to pay the cost share specified above. UNT agrees and understands that UNT, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of the City. The City agrees and understands that the City, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of UNT. VI. UNT shall be responsible for the acts, negligence, and/or omissions of all UNT employees, agents, subcontractors, and/or contract laborers and for all other persons doing work under a contract or agreement with UNT. VII. The City shall be responsible for the acts, negligence, and/or omissions of all City employees, agents, subcontractors, and/or contract laborers and for all other persons doing work under a contract or agreement with the City. VIII. This Agreement is not intended to extend the liability of the Parties beyond that provided by law. Neither UNT nor the City waive, nor shall be deemed to have hereby waived, any immunity or defense that would otherwise be available to it against claims made by third parties. IX. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the Parties hereto, shall be governed by the laws of the State of Texas. Further, this Agreement shall be performable in Denton County, Texas. X. In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the Parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. XI. The undersigned officer and/or agents of the Parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties hereto, and each party hereby certifies to the other that any necessary resolutions extending said authority have been duly passed and are now in full force and effect. XII. This Agreement and its exhibits represent the entire agreement between UNT and the City and supersedes all prior negotiations, representations, and/or agreements, either written or oral, with respect to the subject matter hereto. This Agreement may be amended only by written instrument signed by the governing bodies of both UNT and the City or those authorized to sign on behalf of those governing bodies. XIII. This Agreement becomes effective when signed by the last party whose signing makes the respective Agreement fully executed. XIV. This Agreement may be terminated by written agreement of the Parties. XV. Any written notice that may be necessary under this Agreement shall be delivered certified mail, return receipt requested, to the respective parties addressed as follows: For City: Todd Hileman City Manager 215 E. McKinney Street Denton, Texas 76201 City Copy to: Aaron Leal City Attorney 215 E. McKinney Street Denton, Texas 76201 For UNI': UNT Copy to: Executed this day of , 2017. APPROVED AS TO LEGAL FORM: By: General Council University of North Texas 1155 Union Circle, #311460 Denton, Texas 76203 0 The City of Denton, Texas 215 E. McKinney Street Denton, Texas 76201 Todd Hileman, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY By: `C� -N S:ALegal\Our Documents\Ordinances\l7\Ordinance Interlocal Agreement-UNT Traffic Study.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS FOR THE PURPOSE OF PROVIDING FOR COST AND DUTY ALLOCATION OF A TRAFFIC STUDY AND THE IMPACT OF STREET CLOSURES WITHIN THE UNT CAMPUS ESTIMATED TO COST $224,700.00; AUTHORIZING THE EXPENDITURE OF FUNDS UP TO $112,350.00 THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, UNT and the City mutually desire to be subject to the provisions of Texas Government Code Chapter 791, the Interlocal Cooperation Act, which provides authorization for a local government to contract with one or more local governments or other state agencies to perform governmental functions and services under the terms of the Act; and WHEREAS, UNT intends to implement its recently adopted master plan, which includes proposals for street closures and changes in land use densities; and WHEREAS, the City is in the process of preparing an area plan for the region adjacent to the UNT campus; and WHEREAS, the CITY and UNT agree a Traffic Impact Analysis ("TIA") to identify the impacts of the proposed changes on the surrounding transportation system is proper and is in the best interest of the health, safety, and welfare of the general public. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Interlocal Agreement on behalf of the City with UNT, and is further authorized to carry out the rights and duties of the City under the Interlocal Agreement, including the expenditure of funds. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED,this the day of , 2017. CHRIS WATTS, MAYOR Page 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY m APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN File #: ID 17-1685, Version: 1 Legislation Text AGENDA CAPTION Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for traffic engineering and planning services relating to a traffic study to be performed in an area within and adjacent to the University of North Texas specifically the area bounded by Scripture Street on the north, Bonnie Brae on the west, IH -35E on the south, and Carroll Boulevard/Fort Worth Drive on the east; providing for the expenditure of funds therefor; and providing an effective date (File 6633 awarded to Walter P. Moore and Associates, Inc. in the not -to -exceed amount of $224,700). City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton City Hail 215 E. McKinney Street DENTO) Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for traffic engineering and planning services relating to a traffic study to be performed in an area within and adjacent to the University of North Texas specifically the area bounded by Scripture Street on the north, Bonnie Brae on the west, IH -35E on the south, and Carroll Boulevard/Fort Worth Drive on the east; providing for the expenditure of funds therefor; and providing an effective date (File 6633 awarded to Walter P. Moore and Associates, Inc. in the not -to -exceed amount of $224,700). BACKGROUND INFORMATION The UNT campus has been an integral part of the City of Denton for a long time. In 2013, UNT prepared a Campus Master Plan which envisioned the campus core as a pedestrian and bicycle friendly area. Subsequently, in 2015 UNT developed its Transportation Master Plan that outlined the implementation of the overall vision for the campus. As part of the Transportation Master Plan, UNT is interested in closing (partially or fully) certain portions of City street segments that traverse through the campus. In order to improve communication and better coordinate projects, City and UNT staff have conducted a series of monthly meetings since May 2017. During these meetings, the proposed street closures were discussed and it was agreed by staff on either side, that a traffic impact analysis was required to assess the implications of street closures within and around the UNT campus. At the time, City had engaged the services of Fregonese and Associates, the awarded vendor from RFQ46424, to develop the Small Area Plan which encompasses the UNT campus. The traffic and parking related analysis for this Small Area Plan was assigned to Walter P. Moore and Associates, Inc. (Walter P. Moore) who was a sub -consultant for this proj ect. City and UNT staff agreed that Walter P. Moore was the most qualified for the task as they were already working on the Small Area Plan. Therefore, it was decided to engage their services for preparing the Traffic Impact Analysis (TIA) for the proposed street closures. The total cost for preparing the TIA is $224,700, which will be shared equally between the City of Denton and UNT. UNT will reimburse the City up to $112,350 per an Interlocal Agreement on the December 12 agenda as Item ID 417-1636. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. Given the reasoning discussed earlier, the City requested a comprehensive proposal from Walter P. Moore for professional services associated with the TIA for the proposed street closures. Walter P. Moore has multiple professional engineers within their metroplex offices to complete this project in a timely manner within the allocated budget. These engineers have a wealth of development knowledge and experience with TIA's in the metroplex as well as throughout the nation. It is with this basis that Walter P. Moore, Inc. is the most qualified to prepare the TIA in an efficient manner that would satisfy the needs of the City of Denton and UNT. RECOMMENDATION Award a professional services agreement for assessment of traffic impacts within and around the UNT campus in the City of Denton, to Walter P. Moore and Associates, Inc., in an amount not -to -exceed $224,700. PRINCIPAL PLACE OF BUSINESS Walter P. Moore and Associates, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT The proposed professional services are estimated to be for seven (7) months but may continue until the approved funding amount has been exhausted. FISCAL INFORMATION The professional services will be funded from savings related to the installation of new traffic signals along FM 2181 (Teasley Lane) using account# 360157444.1365.20100. These new signals were originally not funded by TxDOT/County of Denton as part of the widening project along Teasley Lane. As such, staff requested and received funding as part of supplemental funding request for fiscal year 2017-18. Requisition# 136959 has been entered in the Purchasing software system. UNT will reimburse the City up to $112,350 per the interlocal agreement under consideration on December 12 (Item ID 417-1636). STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.2 Enhance connectivity and seek solutions to improve mobility EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Location Map Exhibit 3: Ordinance Exhibit 3: Contract Respectfully submitted: Karen Smith, 349-8436 Purchasing Manager For information concerning this acquisition, contact: Pritam Deshmukh at 349-7710. Figure 1. Study Area ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR TRAFFIC ENGINEERING AND PLANNING SERVICES RELATING TO A TRAFFIC STUDY TO BE PERFORMED IN AN AREA WITHIN AND ADJACENT TO THE UNIVERSITY OF NORTH TEXAS SPECIFICALLY THE AREA BOUNDED BY SCRIPTURE STREET ON THE NORTH, BONNIE BRAE ON THE WEST, IH - 35E ON THE SOUTH, AND CARROLL BOULEVARD/FORT WORTH DRIVE ON THE EAST; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6633 AWARDED TO WALTER P. MOORE AND ASSOCIATES, INC. IN THE NOT -TO -EXCEED AMOUNT OF $224,700.) WHEREAS, the professional services provider (the "Provider") mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair, and reasonable, and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession, and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with Walter P. Moore and Associates, Inc., to provide professional traffic engineering and planning services pertaining to a traffic study to be performed within and adjacent to the University of North Texas, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under the File 6633 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2017. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES FILE 6633 STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT (the "Agreement") is made and entered into on , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Walter P. Moore and Associates, Inc. with its corporate office at 1301 McKinney, Suite 1100, Houston, TX 77010, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I CONSULTANT AS INDEPENDENT CONTRACTOR The OWNER has selected CONSULTANT on the basis of demonstrated competence and qualifications to perform the services herein described for a fair and reasonable price pursuant to Chapter 2254 of the Texas Government Code. The OWNER hereby contracts with the CONSULTANT as an independent contractor and not as an employee, and as such, the OWNER will not assert control over the day-to-day operations of the CONSULTANT. The CONSULTANT is customarily engaged to provide services as described herein independently and on a nonexclusive basis in the course of its business. This Agreement does not in any way constitute a joint venture between OWNER and CONSULTANT. The CONSULTANT hereby agrees to perform the services described herein based on the skills required for the scope of work in connection with the Project as stated in the sections to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, UNT Traffic Study, as described in Exhibit A, which is attached hereto and incorporated herein (the "Project"). ARTICLE II SCOPE OF BASIC SERVICES The CONSULTANT shall perform the following services in a professional manner: A. To perform all those services set forth in CONSULTANT's proposal, which proposal is attached hereto and made a part hereof as Exhibit A as if written word for word herein. Contract 6633 Page 1 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A B. CONSULTANT shall perform all those services set forth in individual task orders, as described in Exhibit A, which shall be attached to this Agreement and made a part hereof. C. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above-described Basic Services, may be negotiated as needed, per rates included in Exhibit A. A. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. B. Preparing data and reports for assistance to OWNER in preparation for hearings before regulatory agencies, courts, arbitration panels or mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator. C. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). D. Assisting OWNER in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT. All such additional services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT. E. Visits to the site in excess of the number of trips included in Exhibit A. F. Preparing statements for invoicing or other documentation for billing other than for the standard invoice for services attached to this professional services agreement. ARTICLE IV TIME OF COMPLETION CONSULTANT is authorized to commence work under this contract upon execution of this AGREEMENT. CONSULTANT will provide services from the date of execution and shall automatically expire upon completion of the work or receipt of the materials, and acceptance by the City of Denton. ARTICLE V COMPENSATION A. COMPENSATION TERMS: Contract 6633 Page 2 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services related to this agreement. 2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "A" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reimbursement for direct non -labor expenses not to exceed $224,700. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "A". Payments for additional services shall be due and payable upon submission by the CONSULTANT and approval by the City staff, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be paid interest in accordance with the Texas Government Code 2251.025. Additionally, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges. Nothing herein shall require the OWNER to pay the late charge if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation," there is a bona fide dispute concerning the amount due, or the invoice was not mailed to the address or in the Contract 6633 Page 3 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A form as described in this Agreement. The OWNER will notify CONSULTANT of any disputes within twenty-one (21) days of receipt of the invoice. E. Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201-4299. A pro -forma invoice shall be sent to the contract administrator. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances arise. 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. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEMNITY AGREEMENT THE CONSULTANT SHALL INDEMNIFY AND SAVE AND HOLD HARMLESS THE OWNER AND ITS OFFICERS, OFFICIALS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, DEMANDS, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO COURT COSTS AND REASONABLE ATTORNEY FEES ASSERTED AGAINST OR INCURRED BY THE OWNER, AND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BODILY AND PERSONAL INJURY, DEATH AND PROPERTY DAMAGE, RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF THE CONSULTANT OR ITS OFFICERS, SHAREHOLDERS, AGENTS, OR EMPLOYEES INCIDENTAL TO, RELATED TO, AND IN THE EXECUTION, OPERATION, OR PERFORMANCE OF THIS AGREEMENT. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Contract 6633 Page 4 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE IX INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The General Liability and Auto Liability insurance policies shall name the OWNER as an additional insured. CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies. ARTICLE X ALTERNATIVE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to mediation with each party bearing its own costs of mediation. No mediation arising out of or relating to this Agreement, involving one party's disagreement may include the other party to the disagreement without the other's approval. Mediation will not be a condition precedent to suit. ARTICLE XI TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (3 0) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons Contract 6633 Page 5 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A specifying the non-performance, and not less than fifteen (15) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: Walter P. Moore and Associates, Inc. 1845 Woodall Rodgers Freeway Suite 1650 Dallas, TX 75201 To OWNER: City of Denton Purchasing Manager —File 6633 901B Texas Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XIV ENTIRE AGREEMENT This Agreement and related exhibits constitute the complete and final expression of this Agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, Contract 6633 Page 6 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as those laws may now read or hereinafter be amended. ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, sexual orientation, national origin or ancestry, age, or physical handicap. ARTICLE XVIII PERSONNEL A. The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XIX ASSIGNABILITY The CONSULTANT acknowledges that this Agreement is based on the demonstrated competence and specific qualifications of the CONSULTANT and is therefore personal as to the CONSULTANT. Therefore, the CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. ARTICLE XX MODIFICATION Contract 6633 Page 7 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXI MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: Exhibit A — Consultant's Scope of Services Offer and Compensation Rate Sheet B. The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONSULTANT shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONSULTANT which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. C. This Agreement shall be governed by, construed, and enforced in accordance with, subject to, the laws of the StateIi" a\ applicable,ega to the conflict of law principles any jurisdiction.., be any dispu g out of the terms and conditionsi party seeking relief. i dispute 1 the District Courts of Denton County diversityif federal matter jurisdiction exists, to the United StatesCo Districtfor the Eastern D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be authorized by CONSULTANT. However, nothing herein shall limit CONSULTANT from using other equally qualified and competent members of its firm to perform the services required herein. Contract 6633 Page 8 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. H. By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. ARTICLE XXII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE XXIII RIGHT TO AUDIT The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONTRACTOR shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONTRACTOR which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and 'other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. Contract 6633 Page 9 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A ARTICLE XXIV CERTIFICATE OF INTERESTED PARTIES ELECTRONIC FILING In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on signature page. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasinakcityofdenton.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 6633 Page 10 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this date CITY OF DENTON, TEXAS TODD HILEMAN, CITY MANAGER JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Doc;usigned by: ty�,,�l�.,, BY: WALTER P. MOORE AND ASSOCIATES, INC., A TEXAS CORPORATION "CONSULTANT" Docu.Sigrtiest by.: .... AUTHORIZED AGENT 2017-289209 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER Contract 6633 Page 11 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted.- Each oted: Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. • Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or Contract 6633 Page 12 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A 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 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. Contract 6633 Page 13 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. Contract 6633 Page 14 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Contract 6633 Page 15 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A 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 project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and Contract 6633 Page 16 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A 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) 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 6633 Page 17 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A materially affects the provision of coverage of any person providing services on the project; and 7) Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self -Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Contract 6633 Page 18 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A WATER P MOORE SCOPE OF TRAFFIC ENGINEERING AND PLANNING SERVICES DATE: Wednesday, November 8, 2017 To: Pritam Deshmukh, P.E. FROM: Rob Rae, AICP Kurt Schulte, AICP Pamela Alummoottil, P.E. SUBJECT: UNT and UNTS Traffic Study Walter P. Moore and Associates, Inc. ("WPM") is providing the following scope in response to the request of conducting a Traffic Study for the City of Denton, UNT and the UNT System (UNTS). Background As the University of North Texas continues to implement its 2013 master plan and its recently completed UNT Parking and Transportation Master Plan (PTMP), the overarching goal is to reduce the number of private vehicles on campus by implementing Traffic Demand Management (TDM) strategies. One recommendation from both the 2013 master plan and the PTMP proposes closure of street segments on Highland Avenue and Avenue C. Additionally, the City is working on preparing a Specific Area Plan (change in land use, zoning, etc.) for regions adjacent to the UNT campus. Before these plans can be implemented, it is prudent to identify the impacts of these proposed changes on the surrounding transportation system and its ability of handle changes in traffic patterns. As such, the City in conjunction with UNT and the UNT System (UNTS) would like to engage the services of a traffic consultant to prepare a Traffic Impact Analysis (TIA) for the proposed changes. The typical tasks included in the overall scope of work are outline below. Scope of Work The tentatively proposed study area for this traffic impact analysis includes area bounded by Scripture Street on the north, Bonnie Brae Street on the west, IH -35E on the south, and Carroll Boulevard/Fort Worth Drive on the east, as shown in Figure 1. Task > — Data Collection Given that the study area is within and adjacent to the UNT campus, the traffic data will be scheduled in the fall term when classes are in session. The count locations have been identified and confirmed by the City, UNT and UNTS staff, and Walter P Moore as shown in Figure 1. - Walter P Moore will collect 31 24 -Hour Bi -Directional Automated Tube Counts for key roadway segments. - Walter P Moore will collect weekday AM, Mid-day and PM peak period (6 hours total) turning movement vehicle counts and pedestrians and bicycle counts at 50 key intersections. - Additional 24 -Hour Bi -Directional Automated Tube Counts or turning movement vehicle counts will be considered as additional services and are included in a separate budget item. - Walter P Moore will check all traffic data collected for accuracy once it has been received. DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A Figure 1. Study Area Task 2 — Macro Analysis (Travel Demand Moder Based on mutual agreement between the City of Denton, UNT and UNTS regarding all data related to this scope of work, including existing assumptions and inputs used for the Denton Travel Demand Model, Walter P Moore will enhance the Denton Travel Demand Model by refining the circulation (transportation) network and updating the land use (demographic) data within the study area which encompasses the UNT campus and the surrounding area. - Walter P Moore will run the base model and review. Data collected in Task 1 will be utilized to calibrate the base year model to 2017. Volumes within +/- 15% are standard thresholds for validation. Although the entire model will be used only the traffic data collected in the study area will be used for validation. - Walter P Moore will update the traffic analysis zones (TAZs) in the study area to reflect the 2017 land use and demographic conditions. Splitting or redefining may be needed to the roadway network. - Walter P Moore will run the base year travel demand model to evaluate the volumes, level of service, and percent change of volumes in the surrounding network for each of the 5 network alternatives listed below. DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A o Closure of portions of Avenue C within the UNT boundaries o Closure of portions of Highland Street within the UNT boundaries o Closure of portions of Avenue C and Highland Street within the UNT boundaries o Closure of portions of Maple Street within the UNT boundaries o Perform select link analysis for various links in the scenarios - Walter P Moore will utilize select link analysis to test each of the alternative links before they are removed from the network. Task 3 — Intersection Leve/ Micro Analysis Key intersection within the study area will be analyzed in Synchro during existing year (2017) and future year (2040). - Walter P Moore identify the locations of existing and proposed parking lots/garages and develop trip generation nodes from these locations that will be capable of distributing trips throughout the network. - Walter P Moore will develop the Synchro model for the existing network within the study area utilizing the 50 collected turning movement counts in Task 1, for the City's use. - Walter P Moore will request and utilize available traffic signal timings provided from the City of Denton to simulate existing conditions in Synchro. - Walter P Moore will utilize the travel demand model data developed in Task 2 to estimate the traffic annual growth rate to be applied to the future year analysis. The results from this analysis will help to determine 25 key (mostly impacted) intersections. - Walter P Moore will conduct existing condition capacity analysis for a maximum of 25 key intersections during the AM, Mid-day, and PM peak hours and report measures of effectiveness (MOEs), including but not limited to level of service and delay. - Walter P Moore will conduct future condition capacity analysis for the same 25 key intersections during the AM, Mid-day, and PM peak hours and report measures of effectiveness (MOEs), including but not limited to level of service and delay. - Walter P Moore will analyze the 5 scenarios listed below utilizing future year conditions. o Closure of portions of Avenue C within the UNT boundaries o Closure of portions of Highland Street within the UNT boundaries o Closure of portions of Maple Street within the UNT boundaries o Closure of portions of Avenue C and Highland Street or Maple Street within the UNT boundaries o Closure of portions of Avenue C, Maple Street and Highland Street within the UNT boundaries - Walter P Moore will analyze key roadway segments and estimate capacity usage during the existing year and future year. DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A Task 4 —Assess /mpacts and Deve%p Mitigation Measures Key intersections and roadway segments will be assessed by comparing the existing and future conditions for all alternatives. - Walter P Moore will analyze impacts and develop mitigation measures for all 25 key intersections and key roadway segments identified in Task 3. Both the existing and future conditions will be analyzed and mitigated. We will analyze and mitigate for all peak periods being studied. - Mitigation measures will be developed base on their feasibility and in coordination with City, UNT and LINTS staff, and Walter P Moore staff. - Walter P Moore will categorize mitigation measures and improvement recommendations by short-, medium-, and long-term improvements. Task 5 — Future Buildout 2040 Analysis In order to assess the future impacts of the closure of street segments within the UNT campus a future buildout analysis will be conducted. - Walter P Moore will utilize the forecast year travel demand model to evaluate future year conditions. The current forecast year land use assumptions in the Denton travel demand model will change as a result of the planning efforts for the Denton Sector 1 South planning study. It is recommended that we use the preferred scenario developed for the planning study for the forecast year land use and demographic inputs. - Walter P Moore will utilize the forecast year model analysis to test 5 network alternatives. Each of the 5 network alternatives identified in Task 2 will be tested using the forecast year travel demand model to evaluate the volumes, level of service, and percent change of volumes in the surrounding network. - Walter P Moore will utilize the results of the forecast year model for the future year intersection and roadway segment analysis. Task 6 — Study Report Based on mutual agreement between the City, UNT and LINTS, Walter P Moore will summarize in a report and submit to the City, UNT, and LINTS for review. - Walter P Moore will provide results of Task 1 through Task 5 in a study report that will include the project background, methodology, and recommendations. The study report will include graphics and tables that describe the process and results in a manner that easily relays technical data to stakeholders and decision -makers in the study area. - Walter P Moore will emphasize improvement recommendations that can be completed in a low-cost and short-term timeframe in the report. - Walter P Moore will submit a draft report, with the final report being developed following a round of comments by the City, UNT, and LINTS staff. DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A Task 7 — Meetings Meetings will be scheduled with the City, UNT, and UNTS staff throughout the project. - Walter P Moore staff members will attend up to four (4) meetings. Proposed project meetings may include the following: project kickoff meeting, existing conditions status update, recommendations meeting, and a potential committee meeting (possible city council or transportation committee meeting). DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A Schedule The work effort, in this proposal, is expected to be completed within 7 months of the Notice to Proceed. I LINT AND UNTS TRAFFIC STUDY SCHEDULE I Notice to Proceed Conduct project kick-off meeting Task 1 - Data Collection Collect, request, and QAQC 50 Turning Movement Counts and 31 24 -Hour Bi - Directional Automated Tube Counts 2 - Macro Analvsis (Travel Demand Modell Refine roadway system to reflect the study area's existing network Update existing land use data and the associated demographics Alternatives - model runs (up to 5 Task 3 - Intersection Level Micro Analysis Identify the location of existing/prcposed parking lots/garages and develop trip generation nodes for system Calculate peak existing and future volumes IIIIIIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIII Develop Synchro model for all intersections and evaluate 25 intersection in the study area for existing year and future year (up to 5 scenarios) Analyze key roadway segments and estimate capacity usage IIIIIIIIIIIIIIIIIIIII �����f IIIIIIIIIIIIIIIIIIIII cask 4 - Assess Impacts and Develop Mitigation Measures Assess traffic impacts at 25 intersections and key roadway segments for all altematives Develop mitigation measures to address the intersection and roadway impacts Task 5 - Future Buildout 2040 Analysis Refine mode to reflect tho study area s preferred buitdout network from Dntn Sector 1 stud Test up to 5 network alternatives IIIIIIIIIIIIIIIII Task 6 - Study Report Summarize the results of the analysis and findings in a draft and then final report Cey: C: Kick-off Meeting DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A XHIBIT A Cost The amount estimated for services in this proposal is $174,700. UNT AND UNTS TRAFFIC STUDY TASKS TASK FEE Task 1 - Data Collection $45,000 Identify locations for traffic counts $400 Collect, request, and QAQC 50 Turning Movement Counts and 31 24 -Hour Bi -Directional Automated Tube Counts $26,200 TOTAL $26,600 Task 5 - Future Buildout 2040 Analysis $27,600 Task 2 - Macro Analysis (Travel Demand Model $11,000 Run base model and review/validate $6,058 Refine roadway system to reflect the study area's existing network $4,038 Update existing land use data and the associated demographics $6,784 Alternatives - model runs (up to 5) $12,420 TOTAL $29,300 Task 3 - Intersection Level Micro Analysis Identify the location of existing/proposed parking lots/garages and develop trip generation nodes for system $4,724 Calculate peak existing and future volumes $14,156 Develop Synchro model for all intersections and evaluate 25 intersection in the study area for existing year and future year (up to 5 scenarios) $25,500 Analyze key roadway segments and estimate capacity usage $14,620 TOTAL $59,000 Task 4 - Assess Impacts and Develop Mitigation Measures Assess traffic impacts at 25 intersections and key roadway segments for all alternatives $10,000 Develop mitigation measures to address the intersection and roadway impacts $8,000 TOTAL $18,000 Task 5 - Future Buildout 2040 Analysis Refine model to reflect the study area's preferred buildout network from Denton Sector 1 study $10,000 Test up to 5 network alternatives $17,600 TOTAL $27,600 Task 6 - Study Report Summarize the results of the analysis and findings in a report $11,000 TOTAL $11,000 Task 7 - Meetings Attend up to four 4 review meetings with City, UNT, and UNTS staff $2,850 Prepare project invoices $350 TOTAL $3,200 LABOR TOTAL ! $174,700 ADDITIONAL SERVICES (ONLY IF AUTHORIZED BY CLIENT) TASK FEE Conduct capacity analysis for 15 additional intersections than the 20 mentioned in Task 3 and Task 4 $45,000 Collect additional Turning Movement Counts MCs) or 24 -Hour Bi -Directional Automated Tube Counts $5,000 ADDITIONAL SERVICES TOTAL $50,000 SUMMARY TOTAL TASK FEE Task 1 - Data Collection $26,600 Task 2 - Macro Analysis ravel Demand Model $29,300 Task 3 - Intersection Level Micro Analysis $59,000 Task 4 - Assess Impacts and Develop Mitigation Measures $18,000 Task 5 - Future Buildout 2040 Analysis $27,600 Task 6 - Study Report $11,000 Task 7 - Meetings $3,200 Additional Services Onl If Authorized Bx Client $50,000 DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A Exhibit B CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. Name of vendor who has a business relationship with local governmental entity. N/A 2 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. N/A Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 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? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. N/A 4 X I have no Conflict of Interest to disclose. 5 DocuSigned by.: 12/6/2017 business with the governmental entity Date DocuSign Envelope ID: E39D64FA-424F-4171-8E34-B6219F99BE1A Docusign City Council Transmittal Coversheet PSA 6633 File Name uNT Traffic study Purchasing Contact Rebecca Hunter City Council Target Date 12/12/17 Contract Value 224,700 Piggy Back Option yes Contract Expiration Ordinance Certificate Of Completion Envelope Id: E39D64FA424F41718E34B62l9F99BElA Subject: Please DocuSign: City Council Contract 6633 Source Envelope: Document Pages: 27 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -06:00) Central Time (US & Canada) Record Tracking Status: Original 12/6/2017 9:23:44 AM Signer Events Jamie Cogdell jamie.cogdelI@cityofdenton.com Senior Buyer City Of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Kurt J Schulte RRae@walterpmoore.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/6/2017 10:04:41 AM ID:f2a8bcb3-188a-4643-b7e5-7eOf2d229c33 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jamie Cogdell Jamie. Cogdel I@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 gaeu�SYgned by::. J� a a78767FT84ac Using IP Address: 47.185.140.160 E0WV$19..d by , 597253BAC456489... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jamie Cogdell 901 B Texas Street Denton, TX 76209 Jamie. Cogdel I@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/6/2017 9:33:43 AM Viewed: 12/6/2017 9:33:53 AM Signed: 12/6/2017 9:39:42 AM Sent: 12/6/2017 9:39:44 AM Viewed: 12/6/2017 10:04:41 AM Signed: 12/6/2017 10:19:39 AM Sent: 12/6/2017 10:19:42 AM Viewed: 12/6/2017 2:46:37 PM Signed: 12/7/2017 9:22:13 AM Sent: 12/7/2017 9:22:15 AM Signer Events Signature Timestamp Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Kurt Schulte kschulte@walterpmoore.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status 4 ■ OP 4 O. 4 ■ OP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/6/2017 9:39:44 AM Viewed: 12/6/2017 9:43:20 AM Sent: 12/6/2017 10:19:40 AM Sent: 12/6/2017 10:19:41 AM Carbon Copy Events Status Timestamp Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Pritam Deshmukh pritam.deshmukh@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 9:22:15 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Kurt J Schulte, Todd Hileman 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 DEYPIN File #: ID 17-1694, Version: 1 Legislation Text AGENDA CAPTION Consider adoption of an ordinance of the City of Denton, Texas to enact a Citizen Comment Pilot Program for Section 3.B. ("Receive Scheduled Citizen Reports from Members of the Public") items of the City Council's Regular Meeting Agenda; providing for a severability clause; providing for an effective date; and providing for a sunset date. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton _ city Hale 41"I&IMMM215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com DEPARTMENT: CM/ DCM/ ACM: DATE: SUBJECT AGENDA INFORMATION SHEET Legal Aaron Leal, City Attorney December 12, 2017 Consider adoption of an ordinance of the City of Denton, Texas to adopt a Citizen Comment Pilot Program for Section 3.13. ("Receive Scheduled Citizen Reports from Members of the Public") items of the City Council's Regular Meeting Agenda; providing for a severability clause; providing for an effective date; and providing for a sunset date. BACKGROUND On October 10, 2017, the City Attorney gave a presentation regarding why the Council could not deliberate and take action on Section 3.13. ("Public Comment") items of the Council's Regular Meeting Agenda. Specifically, Section 3.13. items do not contain the necessary language that is used for all regular meeting agenda action items, which action items consistently use the words "consider" in connection with "adoption" or "approval". During the presentation, a question was asked as to whether the Council could ask questions of the speaker and engage in Council discussion. The City Attorney advised that the Council could if they amended Section 2-29 ("Council Rules of Procedure") and the Regular Meeting Agenda so as to provide the general public advance notice that questions and/or discussion may be had. At the end of the presentation, a consensus of the Council desired to proceed in this manner on a temporary trial basis. The Council directed the City Attorney to bring back a temporary trial ordinance that included the following items: 1. Allow the City Council to discuss Section 3.13. items; 2. Allow the City Council to ask questions of each citizen speaker; 3. Allow the City Council to request that a Section 3.13. item be further researched and presented by City Staff at a later City Council meeting; and 4. Modify the total time allotted for a Section 3.13. item to five (5) minutes, with three (3) of those minutes allotted to the citizen speaker's presentation and two (2) of those minutes allotted to City Council questions and discussion. Attached to this AIS as Exhibit 2 is a draft ordinance that proposes to enact a Citizen Comment Pilot Program that incorporates each of the above items. This Citizen Comment Pilot Program would supersede and prevail over any contrary provisions within Section 2-29 of the City Code for the duration of the pilot program. It will be effective for ninety (90) days to commence on January 1, 2018. At the end of the ninety (90) days, the ordinance will automatically expire without further Council action. If the Council wishes to continue the pilot program on a permanent basis, another ordinance will be necessary to make the changes permanent. Since this ordinance amends Section 2-29 of the City Code, albeit for a temporary basis, Section 2-29(b)(14) requires that any proposed amendments or new rules shall first be introduced at a City Council meeting and then adopted at a subsequent City Council meeting. This is why there is not an action item on the Council's Regular Meeting connected to this Work Session item. This allows City Council to make any revisions to the draft ordinance before adopting it on December 12, 2017. Apart from the draft ordinance, there is also included as Exhibit 3 a draft revision to the script of the video that is aired at the beginning of the Public Comment Section of the City Council's Regular Meeting Agenda. It has been revised to incorporate the changes related to the Citizen Comment Pilot Program. Finally, also included as Exhibit 4 is a draft revision to Section 3.13. of your Regular Meeting Agenda. It too has been revised to incorporate the changes related to the pilot program. December 12, 2017 City Council Work Session The City Attorney presented the draft Citizen Comment Pilot Program Ordinance to City Council, along with proposed revised drafts to the video script aired at the beginning of Public Comment Section of the City Council's Regular Meeting Agenda and to Section 3.13. of the City Council's Regular Meeting Agenda. During the presentation, the City Attorney advised the Council of a Council Member's suggested changes to the video script. Council was agreeable to the changes to the video script, which script, as revised at the Work Session, is attached as Exhibit 4. Finally, City Council directed the City Attorney to place the Citizen Comment Pilot Program Ordinance on its December 12, 2017 meeting agenda for adoption. 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 EXHIBITS 1. Draft Citizen Comment Pilot Program Ordinance 2. Revised Council Citizen Comment video script 3. Revised Section 3.13. of the Regular Meeting Agenda 4. Presentation Respectfully submitted: Aaron Leal City Attorney Prepared by: Toni Reedy Legal Secretary C:\tJsers\100896.CODAI)\AppData\t,ocal\Microsotl\Windows\'rempot-ary Internet files\Coiitent.0titlook\09VBVMR0\CC Rules of Procedures - 12 12 17.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON,'TEXAS TO ENACT A CITIZEN COMMENT PILOT PROGRAM FOR SECTION 3.B. ("RECEIVE SCHEDULED CITIZEN REPORTS FROM MEMBERS OF THE PUBLIC") ITEMS OF THE CITY COUNCIL REGULAR MEETING AGENDA; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING FOR A SUNSENTDATE. WHEREAS, at a City Council Work Session held on October 10, 2017, the City Attorney presented a report regarding the Texas Open Meetings Act ("TOMA") as it related to Section 3.B. ("Receive Scheduled Citizen Reports from Members of the Public") of the City Council's Regular Meeting Agenda; and WHEREAS, during that presentation, the City Attorney explained to the City Council the potential TOMA legal issues concerning the wording of the Section 3.B. captions, which captions are drafted and turned in to the City Secretary for posting; and WHEREAS, the typical Section 3.B. caption wording is inconsistent with the custom the City uses to allow for the City Council to discuss and take action on the item, and thus could subject the City Council to a possible TOMA violation; and WHEREAS, during the presentation a question was asked whether the City Council could ask questions of the speaker and engage in Council discussion, to which the City Attorney advised that they could if they amended Section 2-29 ("Council Rules of Procedure") and the Regular Meeting Agenda so as to provide the general public advance notice that questions and/or discussion may be had; and WHEREAS, at the end of the City Attorney's presentation, the City Council directed the City Attorney to bring back an ordinance which would: (a) allow the City Council to discuss Section 3.B. items; (b) allow the City Council to ask questions of the citizen speaker; (c) allow the City Council to request that a Section 3.B. item be further researched and presented by City Staff at a later City Council meeting; and (d) modify the total time allotted for a Section 3.B. item to five (5) minutes, with three (3) of those minutes allotted to the citizen speaker's presentation and two (2) of those minutes allotted to City Council discussion; and WHEREAS, the City Council also directed that such ordinance would be implemented on a trial basis in the form of a "Citizen Comment Pilot Program" to determine whether to continue the Section 3.B. changes on a full-time basis; WHEREAS, per Denton City Code, Section 2-29(b)(14), this ordinance was introduced at the City Council's December 5, 2017 Work Session, where the City Council was provided with an opportunity to review and comment on the ordinance; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: C:\(Jsers\l 00896.COI)A[)\Appf)ata\Local\Microsofl\Windows\'I'eniporary Internet l,iles\(,oiitetit.0titlook\09V13VMI20\CC Rules of Procedures - 12 12 17.doc herein. SECTION 1. Findings. The foregoing recitals are adopted as findings of the City Council as though set forth fully SECTION 2. Effect on Contrary Provisions in Section 2-29 of the City Code. The provisions of the Citizen Comment Pilot Program shall supersede and prevail over any contrary provisions within Section 2-29 of the City Code for the duration of the Pilot Program. SECTION 3. Citizen Comment Pilot Program. For the duration of the Citizen Comment Pilot Program, Section 2-29(f)(4)a. 1. shall read as follows: Prior Registration. Any person who wishes to place a subject on the council agenda at regular council meetings shall advise the city manager's office of the fact and the specified subject matter which he or she desires to place on the agenda no later than 12:00 p.m. Thursday prior to the council meeting at which he or she wishes the designated subject to be considered. Such reports shall be heard at the beginning of the regular meeting of the city council pursuant to an agenda posting allowing a period of public comment. Up to four (4) speakers per meeting will be assigned to speak at this forum. Each speaker providing a report shall speak for no longer than three (3) minutes. At the conclusion of each report, council may pose questions to the speaker concerning his or her report. Council may also engage in discussion concerning each report. The total time allotted to Council for posing questions or engaging in discussion for each report shall not exceed two (2) minutes. If the city council believes that a speaker's report requires a more detailed review, the council will give the city manager or city staff direction to place the item on a future work session or regular meeting agenda and advise staff as to the background materials to be desired at such meeting. SECTION 4. Implementation Actions. The City Secretary is directed to modify Section 3.13. of the City Council's Regular Meeting Agenda to be in conformity with this Ordinance. The City Manager is directed to modify the video announcement that advises members of the public the procedures for addressing the City Council to be in conformity with this Ordinance. SECTION 5. Effective Date. That this Ordinance shall become effective January 1, 2017. SECTION 6. Sunset Date. C:\Users\100896.CODAD\Appf)tita\]-ocal\Microsoft\Windows\'Fet-nporary Internet Files\Coiltetit.0utlook\09VBVMRO\CC Rules of Procedures - 12 12 17.doc This Citizen Continent Pilot Program shall have no -further force or effect after March 30, 61 KU I L091VALYffMI 'Ill t If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. PASSED AND APPROVED this the day of , 2017. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY fi BY: CHRIS WATTS, MAYOR PAGE 3 The Denton City Council has adopted rules of procedure including a code of conduct that applies to citizens as well as Council members. These rules were enacted to promote an orderly process and to preserve decorum. Here is a brief review of the rules that app4e-,2pply to citizen4 reports. Citizens will have three (3) minutes to give a scheduled citizen report and four (4) minutes to give an "open mike°° report. There will be an electronic bell when time has expired. If the remarks are not concluded by that time, the citizen will be asked to stop speaking. If the citizen does not cease, and a second request is made, the mayor will request to have the citizen removed from the council chambers. Citizens are asked not to approach the dais. If a citizen has papers or other materials to hand out to the Council, please let the City Secretary know and she will have a staff member distribute the materials to the council. MX -M. WMEM—M Council discussion or MOM the item on a future agenda; (2) a statement of factual policy; or (3) a recitation of existing policy. When speaking to the Council, citizens are asked to direct all remarks and questions to the Council as a whole and not to any individual member. Please refrain from making abusive, personal, impertinent, profane or slanderous remarks. Anyone who violates this Council rule of procedure e immediately removed from the Council Chambers. Thank you in advance. ''#4e4+s Adherence to these rules will help make an effective presentation and will preserve the order and decorum of our proceedings. Copies of the rules of procedure are available from the City Secretary. 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 — This section of the agenda permits any person who has registered in advance to make a citizen report regarding a public business item he or she wishes to be considered by the City Council. This is limited to no more than four (4) speakers per meeting with each speaker allowed a maximum of three (3) minutes to present their report. At the conclusion of each report, the City Council may pose questions to the speaker or may engage in discussion. Such questions or discussion shall not exceed two (2) minutes. If the City Council believes a speaker's report requires a more detailed review, the City Council will give the City Manager or City Staff direction to place the item on a future work session or regular meeting agenda and advise staff as to the background materials to be desired at such meeting. 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. NOTE: If audio/visual aids during presentations to Council are needed, they must be submitted to the City Secretary 24 hours prior to the meeting. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN Legislation Text File #: ID 17-1699, Version: 1 AGENDA CAPTION Consider approval of a Resolution directing and authorizing the City Attorney of the City of Denton to intervene in Staff's Application to Set 2018 Wholesale Transmission Service Charges for the Electric Reliability Council of Texas pending before the Public Utility Commission of Texas under Docket No. 47777 and to use, if needed, the Austin law firm of Lloyd Gosselink Rochelle & Townsend, P.C. to represent the City in the same; and providing an effective date. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI [Tower DEPARTMENT: DME CM: Todd Hileman AGENDA DATE: December 12, 2017 M9113TOW1 Consider approval of a Resolution to engage Lloyd Gosselink Rochelle & Townsend, P.C. for Professional Legal Services relating to the pending Public Utility Commission of Texas Docket No. 47777— Commission Stajfs Application to &12018 Wholesale Transmission Service Chargesfir the Electric reliability Council of Texas (ERCOT). BACKGROUND Each year, the Public Utility Commission of Texas (Coin in ission) sets wholesale transmission set -vice charges for the Electric Reliability Council of Texas (ERCOT). ERCOT is required Under 16 Tex. Admin Code § 25.192(d) (TAC) to file the current year's four coincident peak (4CP) demand For each distribution service provider by December 1. This information is used in establishing the transmission service charges for the subsequent year. The Commission has jurisdiction over this application pursuant to Public Utility Regulatory Act, Chapter 35, Subchapter A, The City currently has the law firm of Lloyd Gosselink Rochelle & Townsend, P.C., Austin, Texas ("Lloyd Gosselink") under contract and engaged in existing Public Utility Commission of Texas Dockets relating to wholesale transmission charges for 2017 and previous years. Lloyd Gosselink is familiar with tile complex issues involved in these matters at the Commission. Tile City as a transmission provider in ERCOT along with all other transmission providers has ail immediate interest in these proceedings. The deadline for the City to file as ail Intervenor in this Docket is January 2, 2018. Approval of this resolution will direct and authorize the City Attorney o intervene in Docket 46777 oil behalf of the City and use, if needed, the Austin law firm of Lloyd Gosselink. allow Lloyd Gosselink for representation before tile Commission, PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS None RECOMMENDATION Staff recommends, the Council approve tile resolution directing and authorizing the City Attorney intervene in Docket 46777 and use, if needed, the Austin law firin of Lloyd Gosselink. EXHIBITS Exhibit I — PUCT Staff Application for Docket No. 47777 Exhibit 2 — PUCT Order for Docket No. 47777 Exhibit 3 — Proposed Resolution Respectfully submitted, first assistant City Attorney — Transactions Division DOCKET NA 7 7 7 COMMISSION STAFF'S APPLICATION § 2 a I I N0y 15 H, 1 -110: 36 TO SET 2018 WHOLESALE § PUBLIC UTILITY COMMISSION TRANSMISSION SERVICE CHARGES FOR THE ELECTRIC RELIABILITY § OF TEXAS ` COUNCIL OF TEXAS § APPLICATION TO SET ERCOT WHOLESALE TRANSMISSION SERVICE CHARGES FOR 2018 Each year, the Public Utility Commission of Texas (Commission) sets wholesale transmission service charges for the Electric Reliability Council of Texas (ERCOT). ERCOT is required under 16 Tex. Admin Code § 25.192(d) (TAC) to file the current year's four coincident peak (4CP) demand for each distribution service provider by December 1. This information is used in establishing the transmission service. charges for the subsequent year. The Commission has jurisdiction over this application pursuant to Public Utility Regulatory Act, Chapter 35, Subchapter A. Staff will serve a copy of this application on the wholesale transmission service providers and customers in ERCOT, as well as on ERCOT, as indicated on the attached service list (Attachment 1). This service list is the same as the service list for Docket No. 46604, the previous wholesale transmission service charge docket. Staff requests that the Administrative Law Judge (ALJ) set January 2, 2018, as the deadline for any motion to intervene in this proceeding. As stated above, each year, the Commission sets ERCOT wholesale transmission service charges. As such, interested parties are familiar with the nature, scope, and procedures relating to this docket. In prior proceedings, once ERCOT filed the 4CP data, Staff developed the transmission charge matrix and distributed it for informal feedback prior to filing a proposed matrix. After Staff filed the proposed matrix, there was an additional period for formal comments and then Staff filed a proposed final matrix. Some previous proceedings have been delayed for lengthy periods due to concerns about the accuracy of the 4CP data and changes in the load aggregation schedule. In order to address both possibilities, Staff has developed a proposed procedural schedule which is attached to this pleading as Attachment 2. Staff requests that the ALJ adopt this schedule for use in this proceeding. The proposed schedule requires the parties to address two matters at an early stage of the proceeding. First, parties must identify any changes in the load aggregation used in Docket No. 46604, the 2016 matrix proceeding. A copy of that load aggregation is attached to this pleading as Attachment 3 and is also available online as an attachment to the Order in Docket No. 46604, Item No. 76 (Attachment 3). Second, the schedule requires interested parties to identify any objections to the 4CP data filed by ERCOT and any proposed changes to the load aggregation used in Docket No. 46604 by January 9, 2018, so that the ALJ and parties know whether this matter will require a lengthier schedule. If no objections are filed, Staff can process a draft matrix for comment by January 23, 2018 and a final matrix by February 13, 2018. If objections to the 4CP and a request for hearing are filed, Staff requests that the ALJ conduct a prehearing conference on January 23, 2018, during which the ALJ may get input from the parties and set the procedural schedule accordingly. WHEREFORE PREMISES CONSIDERED, Staff respectfully requests that the deadline for intervention be approved, and that the proposed procedural schedule be adopted. Dated: November 15, 2017 Respectfully Submitted, PUBLIC UTILITY COMMISSION OF TEXAS LEGAL DIVISION Margaret Uhlig Pemberton Division Director Karen S. Hubbard Managing Attorney Matthew A. Arth State Bar No. 240908066 1701 N. Congress Avenue P.O. Box 13326 Austin, Texas 78711-3326 (512) 936-725502168 (facsimile) Matthew.arth@puc.texas.gov CERTIFICATE OF SERVICE I certify that a copy of this document will be served on all parties on the attached service list on November 15, 2017 in accordance with 16 Tex. Admin. Code § 22.74. ;- -Z - - -- /-�- � Matthew A. Arth ATTACHMENT I SERVICE LIST FROM DOCKET NO. 46604 PARTIES REPRESENTATIVE/ADDRESS ELECTRIC RELIABILITY COUNCIL OF BILL MAGNESS TEXAS, INC. ELECTRIC RELIABILITY COUNCIL OF TEXAS INC 7620 METRO CENTER DR AUSTIN TX 78744 512-225-7079 FAX FLORESVILLE ELECTRIC LIGHT AND THOMAS K ANSON POWER SYSTEM STRASBURGER & PRICE LLP 720 BRAZOS STE 700 AUSTIN TX 78701 CITY OF ROBSTOWN UTILITY SYSTEM 512-536-5718 FAX CPS ENERGY CAROLYN SHELLMAN CPS ENERGY P 0 BOX 1771 SAN ANTONIO TX 78296-1771 210-353-6832 FAX GEUS JIM BOYLE (GREENVILLE ELECTRIC UTILITY HERRERA & BOYLE PLLC SYSTEM) 816 CONGRESS AVE SUITE 1250 AUSTIN TX 78701 512-474-2507 FAX TEXAS -NEW MEXICO POWER COMPANY SCOTT SEAMSTER TEXAS -NEW MEXICO POWER COMPANY 577 N GARDEN RIDGE BLVD LEWISVILLE TX 75067 214-222-4156 fax PARTIES REPRESENTATIVE/ADDRESS CITY OF AUSTIN d/b/a AUSTIN ENERGY Filed CHAD SHAW MTI 11/19/10 rdh CITY OF AUSTIN d/b/a AUSTIN ENERGY 301 W 2ND ST P 0 BOX 1088 AUSTIN TX 78767-1088 512-974-6491 FAX CENTERPOINT ENERGY HOUSTON JASON RYAN ELECTRIC, LLC. CENTERPOINT ENERGY SERVICE COMPANY PO BOX 61867 HOUSTON TX 77208 713-574-2661 FAX BROWNSVILLE PUBLIC UTILITIES RICHARD L CROZIER BOARD DAVIDSON, TROILO, REAM & GA.RZA P.C. 919 CONGRESS AVE STE 810 CITY OF WEATHERFORD AUSTIN TX 78701 512- 473-2159 FAX TEXAS MUNICIPAL POWER AGENCY LAMBETH TOWNSEND LLOYD GOSSELINK ROCHELLE & TOWNSEND PC DENTON MUNICIPAL ELECTRIC 816 CONGRESS AVE STE 1900 AUSTIN TX 78701 CITY OF GARLAND 512-472-0532 FAX GOLDEN SPREAD ELECTRIC CAMPBELL MCGINNIS COOPERATIVE, INC. MCGINNIS LOCHRIDGE & KILGORE 600 CONGRESS AVE STE 2100 RAYBURN COUNTRY ELECTRIC AUSTIN TX 78701 COOPERATIVE, INC. 512-505-6346 FAX BANDERA ELECTRIC COOPERATIVE, INC. BRYAN TEXAS UTILITIES PARTIES REPRESENTATIVE/ADDRESS EAST TEXAS COOPERATIVES JOHN T WRIGHT//MARK C DAVIS/RUSSELL G (TEX-LA ELECTRIC COOPERATIVE OF TEXAS, INC., PARISH CHEROKEE COUNTY ELECTRIC COOPERATIVE HOLLAND & KNIGHT ASSOCIATION, DEEP EAST TEXAS ELECTRIC COOPERATIVE, INC., HOUSTON COUNTY ELECTRIC 1005 CONGRESS AVE STE 950 COOPERATIVE, INC., JASPER -NEWTON ELECTRIC AUSTIN TX 78701-2415 COOPERATIVE, INC., RUSK COUNTY ELECTRIC COOPERATIVE, INC., SAM HOUSTON ELECTRIC 512-472-7473 FAX COOPERATIVE, INC., WOOD COUNTY ELECTRIC COOPERATIVE, INC. AND EAST TEXAS ELECTRIC COOPERATIVE, INC.) GUADALUPE VALLEY ELEC COOP., INC. Filed MTI 12/1/11 rdh Updated address change — 3/14/12 rdh ELECTRIC TRANSMISSION TEXAS, LLC AEP JERRY N HUERTA AMERICAN ELECTRIC POWER COMPANY TEXAS COMPANIES 400 W 15TH ST STE 1520 (AEP TEXAS CENTRAL COMPANY AND AEP TEXAS AUSTIN TX 78701 NORTH COMPANY) 512-481-4591 FAX LCRA TRANSMISSION SERVICES KIRK RASMUSSEN CORPORATION ENOCH KEVER PLLC 600 CONGRESS AVENUE, SUITE 2800 AUSTIN, TEXAS 78701 UNITED STATES 512-615-1198 FAX SHARYLAND UTILITES, L.P. ALICIA RIGLER SHARYLAND UTILITIES LP 600 CONGRESS AVE SUITE 2000 ONE AMERICAN CENTER AUSTIN TX 78701 512-322-9233 fax ONCOR ELECTRIC DELIVERY COMPANY HOWARD V FISHER LLC ONCOR ELECTRIC DELIVERY CO LLC 1601 WOODALL RODGERS FRWY STE 613-007 DALLAS TX 75202-1234 214-486-3026 214-486-3221 FAX PARTIES REPRESENTATIVE/ADDRESS BRAZOS ELECTRIC CLIFTON KARNEI BRAZOS ELECTRIC 7616 BAGBY AVE WACO TX 76712 MAIL PHILIP R. SEGREST/BILL SPEARS SEGREST & SEGREST 28015 W WHY 84 MCGREGOR TX 76657 254-8848-2700 FAX SOUTH TEXAS ELECTRIC COOPERATIVE PATRICK SULLIVAN INC HAYNES & BOONE, LLP 600 S CONGRESS STE 1300 AUSTIN TX 78701 512-867-8602 FAX DIANA LIEBMANN HAYNES & BOONE, LLP 112 E PECAN ST STE 1200 SAN ANTONIO TX 78205-1540 210-554-0418 FAX LONE STAR TRANSMISSION, LLC TRACY C DAVIS LONE STAR TRANSMISSION LLC 301 CONGRESS AVE STE 1850 AUSTIN TX 78701 512-236-0484 FAX WIND ENERGY TRANSMISSION TEXAS DENNIS W DONLEY JR LLC NAMAN HOWELL SMITH & LEE PLLP 8310 N CAPITAL OF TEXAS HIGHWAY SUITE 490 AUSTIN TX 78731 512-474-1901 FAX PARTIES I REPRESENTATIVE/ADDRESS RIO GRANDE ELECTRIC COOPERATIVE, INC. TAMMY WAVLE-SHEA COZEN O'CONNOR 1221 LAMAR SUITE 2900 HOUSTON TX 77010 ATTACHMENT 2 PROPOSED PROCEDURAL SCHEDULE ERCOT 4CP data filed December 1, 2017 Deadline to intervene January 2, 2018 Deadline for submitting any changes to the load January 9, 2018 aggregation used in Docket No. 46004 Deadline for intervenors to file objections and request delay in the proceeding based upon alleged errors in the January 17, 2018 4CP data filed by ERCOT and any proposed changes to the load aggregation used in Docket No. 45382 If no intervenor objections based upon alleged errors in the 4CP data filed by ERCOT and any proposed changes to the load aggregation used in Docket No. 45382: Commission Staff files draft transmission charge matrix January 23, 2018 Comments on Commission Staff s draft transmission January 30, 2018 charge matrix due Reply comments on Commission Staff's draft February 6, 2018 transmission charge matrix due Commission Staff files final transmission charge matrix February 13, 2018 If material objections to the 4CP data or proposed changes to the load aggregation used in Docket No. 43881 are raised, an alternative procedural should be applied as follows: Prehearing conference held to discuss schedule January 23, 2018 ERCOT files new 4CP data To be determined at prehearin conference Commission Staff files draft transmission charge matrix One week after ERCOT filing Initial comments on Commission Staff's draft One week after Staff files draft transmission charge matrix due transmission matrix Reply comments on Commission Staffs draft Two weeks after Staff files draft transmission charge matrix due matrix Commission Staff files final transmission charge matrix One week after reply comments filed t 1 Attachment 3 . c Public Utility Com-' don of Te=as Docket No. 46604 2017 Net Wholesale Trans. Matrix Charges for ERCOT (Option 2 - Includes the Golden Spread and the July D Load Aggregation Per ERCOT 2002 Filing (Docket No. 25002) Adjusted TDSP to combine to make Lodestar match Planning List: TDSP Code' CITY OF BOWIE (TDSP) 110 '15,517.105 BRYAN TOM UTILITIES (TDSPr 105 ?24,188.738 t BIG COUNTRY ELECTRIC CO OP INC (TDSP) 21 '25,509.237 BRAZOS ELECTRIC POWER CO OP INC(TDSP) 23 58.066 BARTLETT ELECTRIC CO OP INC 19 43,244.061 CITY OF WHITESBORO 59 ! 8,890.847 COMANCHE ELECTRIC CO OP ASSOCIATION 62 46,753.474 COOKE COUNTY ELECTRIC CO OP ASSOC INC 64 1 84,797.770 DENTON COUNTY ELEC CO OP DBA COSERVE ELEC 67 1,275,143.440 FORT BELKNAP ELECTRIC CO OP INC (TDSP) 72 21,977.092 HAMILTON COUNTY ELECTRIC CO OP (BRAZOS) 78 16,851.837 186,803.953 HEART ORTEXAS ELECTRIC CO OP 172 164,477.224 HILCO ELECTRIC CO OP INC (TDSP) 77 118,176.933 J A C ELECTRIC CO OP INC 79, 18,612.795 MID SOUTH ELECTRIC CO OP ASSOC 88 40,244.605 NAVARRO COUNTY ELECTRIC CO OP INC 89 85,478.424 NAVASOTA VALLEY ELECTRIC CO OP INC 90 79,684.707 SOUTH PLAINS ELECTRIC CO OP INC (TDSP) 96 78,694.079 TRI COUNTY ELECTRIC CO OP INC 99 628,857.514 UNITED ELECTRIC CO OP SERVICES INC 102 413,040.853 W ISE ELECTRIC COOP 103 124,971.487 CITY OF BOWIE (TDSP) 110 '15,517.105 BRYAN TOM UTILITIES (TDSPr 105 ?24,188.738 t BIG COUNTRY ELECTRIC CO OP INC (TDSP) 21 '25,509.237 COLEMAN COUNTY ELECTRIC CO OP INC (TDSP) 61 20,448.755 CONCHO VALLEY ELECTRIC CO OP INC 63 52,870.195 DEAF SMITH ELECTRIC CO OP 198 - GREENBELT ELECTRIC CO OP 196 - LIGHTHOUSE ELECTRIC CO OP 83. 2.495.208 nvw . , r wprw.a FANNIN COUNTY ELECTRIC CO OP INC 69 34,344.854 FARMERS ELECTRIC CO OP INC DBA FEC ELECTRIC 70 246,044.943 FARMERS ELECTRIC CO OP INC DBA FEC ELECTRIC - NPL 202 5,338.837 FARMERS ELECTRIC CO OP INC ARCO (TDSP) 205 730.592 GRAYSON-COL LIN ELECTRIC CO OP INC 74 232,668.184 GRAYSON COLLIN ELECTRIC CO OP INC (AEP AS OSE) 177 11,879.523 LAMAR COUNTY ELEC COOP DBA LEC (TDSP) 82 45,571.233 LAMAR COUNTY ELEC COOP DBA LEC RC HOUPL (TDSP) 182 23.433 TRINITY VALLEY ELEC CO OP 100 164,477.224 TRINITY VALLEY ELEC CO OP (AEP AS QSE) 176 2,785.014 L, Docket N0.46604 00012 Attachment 3 Pone Utility Commission of Texas Docket Na 46604 2017 Net Wholesale Tram. Matrix Charges for ERCOT (Option 2 - Includes the Golden Spread and the July D Load Aggregation Per ERCOT 2002 Filing (Docket No. 25002) Adjusted ITDSP to combine to, make Lodestar match Planning Ust. TDSP Coda ' r „ STEG' 7' t 1,198,864.4 SOUTH TEXAS ELECTRIC CO OP INC 134 220.016 JACKSON ELECTRICAL CO OP INC 126 78,594.417 KARNES ELECTRIC CO OP INC 127 i 144,620.683 NUECES ELECTRIC CO OP INC PILOT TDSP 158 137,225.501 SAN MIGUEL ELECTRIC CO OP INC (TDSP) 131 ` - SAN PATRICIO ELECTRIC CO OP 132 43,521.777 VICTORIA ELECTRIC CO OP INC 136 190,383.354 WHARTON COUNTY ELECTRIC CO OP INC, 138 38,868.578 MAGIC VALLEY ELECTRIC CO OP INC (TOSP) 86 t 501,850.234 MEDINA ELECTRIC CO OP INC (TDSP) STEL 128 168,411.858 a . TMPIkt . 484,273:0 BRYAN TEXAS UTILITY (Gibbons Creek Portion) ftm nWAoEJI ' 101,351.400 DENTON.MUNICIPAL ELECTRIC (Gibbons Creek Portion) oom UVA objeedw 99,455.300 GARLAND POWER AND LIGHT (Gibbons Creek Portion) fM TWA 00:80 218,763.600 GEUS (Formerly Greenville) Gibbons Creek Portion) rme TWA all 11 1 48,702.700 *"SP load as reduced by the Gibbons Creek Portion allocated to TMPA. 9 a a 00013 TxLA t 1146184,96 RUSK COUNTY ELECTRIC COOPERATIVE INC AEP (EDSP) 204 # 8,263.028 DEEP EAST TEXAS ELECTRIC CO OP INC 66 ( 13,865.347 HOUSTON COUNTY ELECTRIC CO OP INC 155 r 2,346.992 HOUSTON COUNTY ELECTRIC CO OP (TDSP) 76 22,333.384 JASPER -NEWTON ELECTRIC CO OP INC 80 i 1,363.920 SAM HOUSTON ELECTRIC CO OP INC (TDSP) 94 5,059.432 CHEROKEE COUNTY ELEC CO OP ASSOC 107 ( 56,058.870 CHEROKEE COUNTY ELEC CO OP ASSOC (CORAL POWER AS QS 171 1,773.127 WOOD COUNTY ELEC CO OP 168 3,120.752 *"SP load as reduced by the Gibbons Creek Portion allocated to TMPA. 9 a a 00013 DOCKET NO. 47777 COMMISSION STAFF'S § PUBLIC UTILITVCOIVIMISSION APPLICATION TO SET 2018 § 2017 N107 16 ►; 11: 2 i WHOLESALE TRANSMISSION § OF TEXAS SERVICE CHARGES FOR THE § t' ; ELECTRIC RELIABILITY COUNCIL § OF TEXAS § ORDER NO. 1 ESTABLISHING INTERVENTION DEADLINE AND ADOPTING PROCEDURAL SCHEDULES On November 15, 2017, Commission Staff filed an application to set 2018 Wholesale Transmission Service Charges for ERCOT. Commission Staff stated that it would serve a copy of the application on the wholesale transmission service providers and customers in ERCOT, as well as on ERCOT, as indicated on Attachment 1 to the application. Commission Staff requested that the Administrative Law Judge set January 2, 2018, as the deadline for any motion to intervene in this proceeding. Given the narrow scope of this docket and the fact that this is an annual process, a relatively compressed intervention period is reasonable. For 2018, Commission Staff stated that ERCOT is required to file the 2017 4CP data by December 1, 2017, under 16 Texas Administrative Code § 25.192(d). Some of the most recent proceedings of the nature of this application have been delayed for lengthy periods due to concerns about the accuracy of the 4CP data and changes in the load aggregation schedule. In order to address both possibilities, Commission Staff developed the following proposed procedural schedules for use in this proceeding. ERCOT 4CP data filed December 1, 2017 Deadline to intervene January 2, 2018 Deadline for submitting any changes to the load aggregation used in January 9, 2018 Docket No. 466041 Deadline for intervenors to file objections and request delay in the January 17, 2018 proceeding based upon alleged errors in the 4CP data filed by ERCOT and any proposed changes to the load aggregation used in Docket No. 46604 I Commission Staff's Application to Set 2017 Wholesale Transmission Service Charges for the Electric Reliability Council of Texas, Docket No. 46604 (Mar. 30, 2017). 9-- 000001 Docket No. 47777 Order No. 1 Page 2 If there are no intervenor objections based upon alleged errors in the 4CP data filed by ERCOT and any proposed changes to the load aggregation used in Docket No. 46604: Commission Staff files draft transmission charge matrix January 23, 2018 Comments on Commission Staff draft transmission charge matrix January. 30, 2018 due ` Reply comments on Commission Staff s draft transmission charge February 6, 2018 matrix due Commission Staff files final transmission charge matrix February 13, 2018 If material objections to the 4CP data or proposed changes to the load aggregation used in Docket No. 46604 are raised, an alternative procedural schedule will be applied as follows: Prehearing conference held to discuss January 23, 2018 schedule ERCOT files new 4CP data To be determined at prehearing conference Commission Staff files draft transmission One week after ERCOT filing charge matrix Initial comments on Commission Staff draft One week after Commission Staff files draft transmission charge matrix due transmission matrix Reply comments on Commission Staff s draft Two weeks after Commission Staff files draft transmission charge matrix due transmission matrix Commission Staff files final transmission One week after reply comments filed charge matrix The deadline for intervention is approved, and the preceding procedural schedules are adopted. Signed at Austin, Texas the I1 i day of November 2017. PUBLIC UTILITY COMMISSION OF TEXAS JEFFREVJ.-HUIfN ADMINISTRATIVE LAW JUDGE gAcadm\docket management\electric\tcos\47xxx\47777-1 docx 000002 RESOLUTION NO. A RESOLUTION DIRECTING AND AUTHORIZING THE CITY ATTORNEY OF THE CITY OF DENTON TO INTERVENE IN THE STAFF APPLICATION TO SET 2018 WHOLESALE TRANSMISSION SERVICE CHARGES FOR THE ELECTRIC RELIABILITY COUNCIL OF TEXAS PENDING BEFORE THE PUBLIC UTILITY COMMISSION OF TEXAS UNDER DOCKET NO. 47777 AND TO USE, IF NEEDED, THE AUSTIN LAW FIRM OF LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C. TO REPRESENT THE CITY IN THE SAME; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, each year, the Public Utility Commission of Texas ("PUC") sets wholesale transmission service charges for the Electric Reliability Council of Texas ("ERCOT"). ERCOT is required under 16 Tex. Admin Code § 25.192(d) (TAC) to file the current year's four coincident peak demand for each distribution service provider by December 1. This information is used in establishing the transmission service charges for the subsequent year. The PUC has jurisdiction over this application pursuant to Public Utility Regulatory Act, Chapter 35, Subchapter A; WHEREAS, on November 15, 2017, the PUC staff filed Staff s Application to Set ERCOT Wholesale Transmission Service Charges for 2018 (Docket No. 47777; "Proceeding"); WHEREAS, January 2, 2018 is the deadline to file any motion to intervene in the Proceeding; WHEREAS, the City Attorney's Office has the Austin law firm of Lloyd Gosselink Rochelle & Townsend, P.C. under retainer to represent the City in such electric utility matters before the PUC; WHEREAS, the City, along with the Cities of Garland and Bryan, and the Texas Municipal Power Agency, have annually intervened in such proceedings with the purpose being to ensure that the PUC aggregates TMPA's Gibbons Creek Power Plant portion of the load for the its member cities (the Cities of Bryan, Denton, Garland and Greenville) under TMPA; and WHEREAS, the City finds it is in the public interest of the ratepayers to intervene in the Proceeding; NOW THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings and recitations contained in the preamble of this Resolution are incorporated herein by reference. SECTION 2. The City Attorney is directed and authorized to take the appropriate action to intervene on the City's behalf in the Texas Public Utility Commission ("PUC") Staff's Application to Set ERCOT Wholesale Transmission Service Charges for 2018 pending before the PUC under Docket No. 47777 ("Proceeding"). SECTION 3. The City Attorney, if needed, is authorized to use the services of the Austin law firm of Lloyd Gosselink Rochelle & Townsend, P.C. to represent the City's intervention in the Proceeding; SECTION 4. This Resolution 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 M APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: f Z 'rtAIIA-�- City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'rIN File #: ID 17-1619, Version: 1 Legislation Text AGENDA CAPTION Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for engineering design services relating to the design, bid phase, and construction services for the PEC -4 Phases 3 and 4 Drainage Improvements project which includes approximately 2,700 linear feet of reinforced concrete box, 2,300 linear feet of waterline relocation and lowering, 1,700 linear feet of sanitary sewer line relocation and adjustment, and pavement repair from West Prairie Street to the beginning of the open channel near the intersection of West Mulberry Street and Bernard Street; providing for the expenditure of funds therefor; and providing an effective date (File 6625 awarded to Freese and Nichols, Inc. in the not -to -exceed amount of $1,200,000). The Public Utilities Board will consider this item on December 11, 2017. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I-eg;gl;>karI City of Denton _ city Hale 41"I&IMMM215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: Materials Management CM: Todd Hileman DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for engineering design services relating to the design, bid phase, and construction services for the PEC -4 Phases 3 and 4 Drainage Improvements project which includes approximately 2,700 linear feet of reinforced concrete box, 2,300 linear feet of waterline relocation and lowering, 1,700 linear feet of sanitary sewer line relocation and adjustment, and pavement repair from West Prairie Street to the beginning of the open channel near the intersection of West Mulberry Street and Bernard Street; providing for the expenditure of funds therefor; and providing an effective date (File 6625 awarded to Freese and Nichols, Inc. in the not -to -exceed amount of $1,200,000). The Public Utilities Board will consider this item on December 11, 2017. BACKGROUND The PEC 4 Drainage Improvement project is a multi -phase project listed in the City's Capital Improvement Program with the purpose of flood prevention within a portion of the Pecan Creek Tributary 44. The limits of the project extend along Pecan Creek Tributary 4 from the improved channel at Wainwright Street and Bell Avenue, northwest to Mulberry Street, just east of Bernard (Exhibit 2 - Location Map). The general improvements for this project are the installation of an underground storm sewer capable of containing a 100 year flood event. The overall project consists of four (4) phases. Phase 1 and 2 extend from Bell Avenue to Prairie Street just west of Locust Street. These two phases are nearing design completion by Freese and Nichols, Inc. This design contract is for Phases 3 and 4 which extends from Prairie Street to Mulberry Street. FILE INFORMATION Freese and Nichols, Inc. has been selected for the detailed design of this project on the basis of their demonstrated qualifications in storm drainage design projects. Freese and Nichols, Inc. has worked closely with staff to scope and execute other similar projects including the Phase 1 and 2 portions of the PEC 4 Project. They have performed well in the execution of professional engineering services for the City of Denton, delivering projects in a professional and efficient manner. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. Therefore, the Capital Projects department requested a proposal directly from Freese and Nichols, Inc. The proposed engineering contract for this project will be on an hourly basis with a not -to -exceed amount of $1,200,000. Typical services will include the creation of construction plans for the storm drain improvements, water and sewer relocations, and street reconstruction improvements, along with bid and construction phase support. Other services included are design survey, hydraulic modeling, creation of easement documents, subsurface utility engineering services, geotechnical services, FEMA coordination, and public involvement. The preliminary opinion of probable construction cost for the project is approximately $9,300,000. These numbers will be verified as the design project progresses. RECOMMENDATION Staff recommends approval of the Professional Services Agreement between the City of Denton and Freese and Nichols, Inc. in the amount of $1,200,000 for engineering services associated with the PEC 4 Drainage Improvements Phase 3 and 4 project. PRINCIPAL PLACE OF BUSINESS Freese and Nichols, Inc. Fort Worth, Texas ESTIMATED SCHEDULE OF PROJECT The consultant is prepared to begin the services associated with this Agreement immediately with the goal of completing design by December 2018. Construction will be coordinated with the schedule of Phases 1 and 2 of this project. FISCAL INFORMATION This project will be funded from 2007 Certificates of Obligation for drainage improvements along Mingo Road. The Mingo Road project will be funded in a future debt program. Requisition 4136965 has been entered in the Purchasing software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.4 Manage drainage infrastructure EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Project Map Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Karen Smith, 349-7100 Purchasing Manager For information concerning this acquisition, contact: Lee Perry, P.E., Senior Engineer, at 349-8938 L . .. �.. �wof IF ..TIW��a.. ..�... t. .11_ ... ... . e ... CKO Y ST �. .. H CKir-j-]IOR f,...,fl II � II .-��.. � . .� �11.�W . � � Y s ���� T-111-17I cn "....Upstream ( �...........II:,,....I� Extents o v� II W W �—$-- ............ �p 1C `---- --- II. I Phase 4 . ...1i. ..... r ir .. .. .. ...J....II......... _. u. .. .. Ph t s p t ( ase.:.. I n ..-... .. 0 W .....II..II .. II I.. _ II .:... u . f N Cs . SII II ���. I i...���.�I�...��.�II..�,I..���- r� . �L ---- II a Z' it ---------- I ------ � L) W I��.� �� v Lu I I II IC II II N N� CHESTNUT 1 _ .,u�.E_Sr. r ..LLIZ I� a II-PRAI c x li �a !I LL M II II ali Downstream ��� (� .��.����� Extents ��� ��` Oi a II I I�_���� � I� .��---- Legend a w Le end - , J Project Limits ! """" II I � � ... II :Ili li ---- .- Parcels PEC-4 1 0 �� �� 20 60 0 120 Feet r Centerline i� d o w g ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING DESIGN SERVICES RELATING TO THE DESIGN, BID PHASE, AND CONSTRUCTION SERVICES FOR THE PEC -4 PHASES 3 AND 4 DRAINAGE IMPROVEMENTS PROJECT WHICH INCLUDES APPROXIMATELY 2,700 LINEAR FEET OF REINFORCED CONCRETE BOX, 2,300 LINEAR FEET OF WATERLINE RELOCATION AND LOWERING, 1,700 LINEAR FEET OF SANITARY SEWER LINE RELOCATION AND ADJUSTMENT, AND PAVEMENT REPAIR FROM WEST PRAIRIE STREET TO THE BEGINNING OF THE OPEN CHANNEL NEAR THE INTERSECTION OF WEST MULBERRY STREET AND BERNARD STREET; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6625 AWARDED TO FREESE AND NICHOLS, INC. IN THE NOT -TO -EXCEED AMOUNT OF $1,200,000). WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with Freese and Nichols, Inc., to provide professional engineering services for PEC -4 Phase 3 and 4 Drainage Improvements, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under the File 6625 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2018. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C. APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: Q, -)w ) u DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC PROFESSIONAL ENGINEERING SERVICES FOR PEC 4 Drainage Improvements Phase 3 & 4 (CONTRACT 6625) THIS AGREEMENT is made and entered into this date , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Freese and Nichols, Inc, with its corporate office at 4055 International Plaza, Suite 200, Fort Worth, Texas, 76109, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas engineer, as an independent contractor. The Design Professional hereby agrees to perform the services in conjunction with the PEC 4 Drainage Improvements Phase 3&4 project as described herein and in the Scope of Work (Exhibit 4), the General Conditions (Exhibit 3), and other attachments to this Agreement that are referenced in Section 4. The Project shall include, but shall not be limited to, the following major components (for a more precise or comprehensive description of the Scope refer to Exhibit 4): Design drainage improvements for CITY for Stream PEC -4 from West Prairie Street to the beginning of the open channel near the intersection of West Mulberry Street and Bernard Street. Stream PEC -4 is currently an aging system of undersized open channels and culverts throughout the project area. The purpose of this project is to alleviate flooding along the channel by designing a closed pipe system for Phases 3 and 4. The PEC -4 — Phase 3 and 4 Drainage Improvements (PROJECT) includes approximately 2,700 linear feet of reinforced concrete box, 2,300 linear feet of waterline relocation and lowering, 1,700 linear feet of sanitary sewer line relocation and adjustment, and pavement repair by the project. The ENGINEER will prepare construction documents for design of improvements. Figure 1 shows the location and preliminary design extents for the drainage improvements. SECTION 2 COMPENSATION AND SCHEDULE Total compensation for the Design Professional contemplated under the terms of this agreement shall be a total not -to -exceed $1,200,000 for all services including reimbursable expenses. The Owner shall compensate the Design Professional as follows: 2.1 BASIC AND SPECIAL SERVICES 2.1.1 For Basic Services the total compensation shall be an hourly not to exceed total of $918,000 and for Special Services the total compensation shall not exceed $282,000. Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 2.1.2 Progress payments for Basic Services shall be paid monthly based on the actual work satisfactorily completed per month in each phase as a percentage of the overall compensation for that phase, with the following amounts of the total compensation for the Basic Services for each phase of the Project: Task Description Type Fee Task 1 - Design Management Basic $ 80,000 Task 2 - Conceptual Design Basic $ 143,000 Task 3 - Preliminary Design Basic $ 240,000 Task 4 - Final Design Basic $ 300,000 Task 5 - Bid Phase Services Basic $ 15,000 Task 6 - Construction Phase Services Special $ 130,000 Task 7 - FEMA Coordination Services Special $ 45,000 Task 8 - Survey and SUE Services Basic $ 140,000 Task 9 - ROW Services Special $ 60,000 Task 10 - Geotechnical Investigation Special $ 30,000 Task 11 - Public Involvement Special $ 17,000 Total Basic $ 918,000 Total Special $ 282,000 Total Fee $ 1,200,000 2.2 ADDITIONAL SERVICES 2.2.1 If Scope of Services change so that Additional Services are needed, including but not limited to those services described as Additional Services in Exhibit 6, DESIGN PROFESSIONAL will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges as shown in Exhibit 5. 2.3 SCHEDULE The Design Professional will be authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the detailed design services in 12 months and construction in 3 years for a total contract term of 4 years. SECTION 3 INVOICES Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E. McKinney St, Denton, TX, 76201-4299. A pro -forma invoice shall be sent to the contract administrator as identified in the Notice to Proceed. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice, unless unusual circumstances arise. 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. Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC SECTION 4 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: Exhibit 1 Certificate of Interested Parties Electronic Filing Exhibit 2 City of Denton Insurance Requirements for Consultants/Contractors Exhibit 3 City of Denton General Conditions to Agreement for Architectural or Engineering Services Exhibit 4 Scope of Services Exhibit 5 Compensation Attachment House Bill 89 Verification Attachment Senate Bill 252 Certification Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC By executing this Agreement below in conformance with Sec. 2270 of the Texas Government Code, the Supplier verifies that the Supplier: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON, TEXAS A Municipal Corporation TODD HILEMAN CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Docwsigned by: BY: Freese & Nichols A Corporation DocuSigned! by: a BY: AUTHORIZED AGENT skh@freese.com EMAIL ADDRESS 2017-290119 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Exhibit 1 Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info 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 the signature page of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasing@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 # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Exhibit 2 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONS LTANTS/CONTRACTORS The Offeror'sMidder's attention is directed to the insurance requirements below. It is highly recommended that offerors/bidders confer with their respective insurance carriers or brokers to determine in advance of its proposal or bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an offeror/apparent low bidder fails to comply strictly with the insurance requirements, that offeror/bidder may be disqualified from award of the contract. Upon award, all insurance requirements shall become contractual obligations, which the successful offeror/bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Consultant/Contractor, the Consultant/Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of award, Consultant/Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the proposal/bid number and title of the project. Consultant/Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Consultants/Contractors are strongly advised to make such requests prior to proposal/bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposal/bid. Consultant/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 or bid. 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 Consultant/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: Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims -made form, Consultant/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 Consultant/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 $500,000.00 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. Contract # 6625 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned, hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). ] 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 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a _ aggregate. [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] 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 �] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. " Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. �] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Exhibit 3 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement') and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 23.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional represents that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 23.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2A CONSTRUCTION DOCUMENTS PHASE 2A.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2A.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. 2A.3 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 2A.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5 CONSTRUCTION CONTRACT PROCUREMENT 2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Con- struction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agree- ment as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications famished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owner's rights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omissions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judg- ment to permit adequate review. 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 designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When malting such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Constriction Documents during the Construction Phase. ARTICLE 3 ADDITIONAL SERVICES MKIM11 DI 117411_ 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 33 CONTINGENT ADDITIONAL SERVICES 33.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or due to changes required as a result of the Owner's failure to render decision in a timely manner. 33.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 33.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 33.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 33.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 33.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 33.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 33.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 33.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. 3A OPTIONAL ADDITIONAL SERVICES 3A.1 Providing financial feasibility or other special studies. 3A.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3A.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 3A.4 Providing services relative to future facilities, systems and equipment. 3A.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3A.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 3A.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3A.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3A.9 Providing analyses of operating and maintenance costs. 3A.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities 3A.12 Providing assistance in the utilization of equipment or systems such as testing adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation during operation. 3A.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3A.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3A.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3A.16 Providing any other services not otherwise included in this Agreement or not customarily famished in accordance with generally accepted architectural practice. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 3A.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during construction based on marked -up prints, drawings and other data famished by the Contractor to the Design Professional. 3A.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the Design Professional regarding requirements for the Pmject, including (1) the Owners objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more specifically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Pmject, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 43 If requested by the Design Professional, the Owner shall famish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4A The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. 4.5 Where applicable, the Owner shall fimmish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall famish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating sub -soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall famish structural, mechanical, chemical, air and water pollution tests, tests of hazardous mate- rials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construc- tion are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of sub- mission of the Construction Documents to the Owner and the date on which proposals are sought. ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project, Design Professional shall coop- erate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Design Professional's services. 73 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7A Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial nonperformance and cause for termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holi- days, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 83 PAYMENTS ON ACCOUNT OF BASIC SERVICES 83.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 83.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 83.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8A PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 8A.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 113 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attachments referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11A Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific infor- mation considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement. 11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC EXHIBIT 4 SCOPE OF SERVICES PEC -4 - Phase 3 and 4 Drainage Improvements The scope set forth herein defines the work to be performed by the ENGINEER in completing the project. Both the CITY and ENGINEER have attempted to clearly define the work to be performed and address the needs of the Project. Under this scope, "ENGINEER" is expanded to include any sub -consultant, including surveyor, employed or contracted by the ENGINEER. GENERAL OVERVIEW Freese and Nichols, Inc., (ENGINEER) has been contracted by the City of Denton (CITY) to design drainage improvements for CITY for Stream PEC -4 from West Prairie Street to the beginning of the open channel near the intersection of West Mulberry Street and Bernard Street. Stream PEC -4 is currently an aging system of undersized open channels and culverts throughout the project area. The purpose of this project is to alleviate flooding along the channel by designing a closed pipe system for Phases 3 and 4. The PEC -4 — Phase 3 and 4 Drainage Improvements (PROJECT) includes approximately 2,700 linear feet of reinforced concrete box, 2,300 linear feet of waterline relocation and lowering, 1,700 linear feet of sanitary sewer line relocation and adjustment, and pavement repair by the project. The ENGINEER will prepare construction documents for design of improvements. Figure 1 shows the location and preliminary design extents for the drainage improvements. WORK TO BE PERFORMED Task 1. Design Management Task 2. Conceptual Design Task 3. Preliminary Design Task 4. Final Design Task 5. Bid Phase Services Task 6. Construction Phase Services (Special Service) Task 7. FEMA Coordination Services (Special Service) Task 8. Survey Services Task 9. ROW Services (Special Service) Task 10. Geotechnical Investigation (Special Service) Task 11. Public Involvement (Special Service) TASK 1. DESIGN MANAGEMENT. ENGINEER will manage the work outlined in this scope to ensure efficient and effective use of ENGINEER's and CITY's time and resources. ENGINEER will manage change, communicate effectively, coordinate internally and externally as needed, and proactively address issues with the CITY's Project Manager and others as necessary to make progress on the work. Page 1 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC 1.1. Managing the Team • Lead, manage and direct design team activities • Ensure quality control is practiced in performance of the work • Communicate internally among team members • Task and allocate team resources 1.2. Communications and Reporting • Attend a pre -design project kickoff/chartering meeting with CITY staff to confirm and clarify scope, understand CITY objectives, and ensure economical and functional designs that meet CITY requirements. • Conduct up to three (3) review meetings with the CITY, one at the end of each design phase. • Conduct one (1) meeting during the Bid Phase with the CITY. • Prepare and submit monthly progress reports. • Prepare and submit baseline Project Schedule initially, and Project Schedule updates monthly. • Coordinate with other agencies and entities as necessary for the design of the proposed infrastructure, and provide and obtain information needed to prepare the design. ASSUMPTIONS • A total of ten (10) meetings are assumed, including one (1) project kickoff meeting, three (3) meetings at the end of 30%, 60%, and 90% design phases, one (1) meeting during the bid phase, and up to five (5) additional meetings to coordinate various project elements. DELIVERABLES A. Meeting summaries with action items B. Monthly progress reports C. Baseline design schedule TASK 2. CONCEPTUAL DESIGN (30 PERCENT). The Conceptual Design shall be submitted to CITY per the approved Project Schedule. The purpose of the conceptual design is for the ENGINEER to identify, develop, communicate through the defined deliverables, and recommend the design concept that successfully addresses the design problem, and to obtain the CITY's endorsement of this concept. ENGINEER will utilize concepts and criteria contained in the current City of Denton Design Criteria Manual (2013). ENGINEER will develop the conceptual design of the infrastructure as follows. 2.1. Data Collection Page 2 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC In addition to data obtained from the CITY, ENGINEER will research and make efforts to obtain pertinent information to aid in coordination of the proposed improvements with any planned future improvements that may influence the project. ENGINEER will also identify and seek to obtain data for existing conditions that may impact the project including: record drawings, utilities, agencies (such as TxDOT and railroads), CITY Master Plans, CITY drainage complaint files, existing applicable drainage studies, FEMA floodplain and floodway maps, existing models of project area (if any) and property ownership as available from the Tax Assessor's office. • Engineer will make site visits to become familiar, or verify, the site and observe existing conditions. 2.2. Hydrologic and Hydraulic Analysis ENGINEER will prepare a hydrologic and hydraulic analysis of the proposed drainage improvements as a basis for the design. This analysis will prepare a single combined model for the drainage improvements that can be used to communicate project benefits to interested parties as well as gain FEMA approval for a Letter of Map Revision (LOMR). 2.2.1 Hydrology • Delineate contributing drainage area based on aerial topography, survey data, site exploration and LiDAR provided by the CITY • Develop design discharges using NRCS Unit Hydrograph method for standard design storms including the 2,5, 10, 25, 50, and 100 -year events. 2.2.2 Hydraulics • Develop 2D hydraulic model of study area using XP-SWMM. • Execute hydraulic model for the following scenarios: i. Pre -project model representing existing conditions. ii. Post -project model representing proposed box system. • Evaluate impacts of proposed box system on water surface elevation within the study area and document in tabular and graphical format. • Evaluate capacity of drainage infrastructure for laterals and inlets. Model may identify additional drainage infrastructure necessary to collect runoff for project. Design of additional laterals not shown on project exhibit shall be considered an additional service. • Document proposed versus existing conditions results in a technical memorandum. 2.3. The Conceptual Design Package shall include the following: • Project Schematic — Overall project plan and profile illustrating project improvements as a single roll plot. Schematic may include standards cross sections or details as needed clarify design. • Estimates of probable construction cost: ENGINEER will prepare Opinion of Probable Construction Cost based on 30% schematic Page 3 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Drainage analysis technical memorandum. ASSUMPTIONS • All storm water lateral and inlet design shall conform to the City of Denton Design Manual 2013. • Main trunk line will be designed using modeling results from XP -STORM. • Waterline design replacement to include new 8" waterline along Mulberry from Bernard to 400 feet east of Carroll, a 20" waterline lowering on Sycamore at the new storm drain crossing, an 8" waterline lowering on Sycamore at the new storm drain crossing, and an 8" waterline lowering on Stroud at the new storm drain crossing. • Sewerline design replacement to include new 18" sanitary sewer from Bernard to Carroll along Mulberry, and two sanitary sewer relocations on Sycamore with one being at the new storm drain crossing and the other being approximately 200 feet of sewer line from Sycamore to the North in an easement. • Conceptual design package will consist of one (1) drainage analysis technical memorandum, four (4) copies of full size project schematic plans, one (1) copy of the 30% estimate of probable construction cost, and PDF copy of the above items. • ENGINEER shall not proceed with Preliminary Design activities without written approval by the CITY of the Conceptual Design Package. DELIVERABLES A. Conceptual Design Package. TASK 3. PRELIMINARY DESIGN (60 PERCENT). Preliminary plans shall be submitted to CITY per the approved Project Schedule. ENGINEER will develop the preliminary design of the infrastructure as follows. 3.1. Development of Preliminary Design Drawings shall include the following: • Cover Sheet • General Notes • Horizontal Control • Overall Project Layout • Demolition Sheet • Drainage Area Map • Drainage Calculations • Storm Drain Plan and Profiles • Storm Drain Cross Sections • Relic Channel Design (as needed) • Sewer Plan and Profiles • Water Plan and Profiles • Pavement Plan and Profiles • Structural Sections Page 4 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • General Details (as needed) 3.2 Utility Clearance The ENGINEER will consult with the CITY, public utilities, private utilities, and government agencies to determine the approximate location of above and underground utilities, and other facilities (current and future) that have an impact or influence on the project. ENGINEER will design CITY facilities to avoid or minimize conflicts with existing utilities, and where known and possible consider potential future utilities in designs. • Coordination of utility relocations, if required, will be the responsibility of the ENGINEER. 3.3. The Preliminary Design Package shall include the following: • Preliminary Plans to include drawings identified above. • ENGINEER will prepare Opinion of Probable Construction Cost based on 60% plans. ASSUMPTIONS Provide roadway plan and profile design for Mulberry Street from approximately 200' east of Bernard Street to approximately 300' east of S. Carrol Blvd. Provide horizontal and vertical layout of proposed roadway. Provide cross section drawings at 50' intervals. Project details to be utilized will be standard from City or TxDOT. Details requiring specific design may be an additional service. Identify applicable client and agency standard specifications for use on the project. Project specific specifications may be an additional service. Provide one-way traffic control for Mulberry Street from Bernard St to US HWY 77. It is anticipated that the project will remain outside of TxDOT right-of-way and no permitting will be required. If permitting is required, this may be an additional service. Provide intersection phasing plan at S. Carrol Blvd and Mulberry St. Provide full closure detour plan for Sycamore Street from S. Carrol Blvd to US HWY 77 and Stroud St from Pierce St to US HWY 77. • Preliminary design package will consist one (1) final drainage analysis technical memorandum, four (4) copies of half size (11"x17"), one (1) copy of full size (22"x34") drawings, one (1) copy of the 60% estimate of probable construction cost, and PDF copy of the above items. • ENGINEER shall not proceed with Final Design activities without written approval by the CITY of the Preliminary Design plans. DELIVERABLES A. Preliminary Design drawings B. Outline of technical specifications C. Estimates of probable construction cost Page 5 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC TASK 4. FINAL DESIGN (90 PERCENT) AND FINAL CONSTRUCTION DOCUMENTS (100 PERCENT). 4.1 Upon approval of the Preliminary plans, ENGINEER will prepare construction plans as follows: Final draft construction plans and specifications shall be submitted to CITY per the approved Project Schedule. • Cover Sheet • General Notes • Horizontal Control • Project Layout • Erosion Control • Drainage Area Map • Drainage Model Identifier Sheets • Drainage Calculations • Demolition Sheet • Storm Drain Plan and Profiles • Storm Drain Cross Sections • Lateral Profiles • Relic Channel Design • Sewer Plan and Profiles • Water Plan and Profiles • Pavement Plan and Profiles • Structural Sections • General Details • Storm Drain Details • Sewer Details • Water Details • Pavement Details • Structural Details • The ENGINEER shall submit a final design estimate of probable construction cost with the final design plans submitted. 4.2 Following a 90% construction plan review meeting with the CITY, the ENGINEER shall submit Final Plans (100%) to the CITY per the approved Project Schedule. Each plan sheet shall be stamped, dated, and signed by the ENGINEER registered in State of Texas. ASSUMPTIONS • Project will be separated into phases within the plan set so the City has the flexibility to bid as a single project or separate projects. • 90% design package will consist of four (4) copies of half size (11"x17'), one (1) copy of full size (22"x34") drawings, one (1) copy of the 90% estimate of probable construction cost, and PDF copy of the above items. Page 6 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Final design package will consist of four (4) copies of half size (11"x17"), two (2) copies of full size (22"x34") drawings, one (1) copy of the 100% estimate of probable construction cost, and PDF copy of the above items. DELIVERABLES A. 90% construction plans and specifications. B. 100% construction plans and specifications. C. Detailed estimates of probable construction cost for the authorized construction project, including summaries of bid items and quantities using the CITY's standard format. TASK 5. BID PHASE SERVICES. ENGINEER will support the bid phase of the project as follows. • The ENGINEER will provide technical assistance with questions and plan revisions as needed. • Attend the prebid conference in support of the CITY. • ENGINEER will check contractor references and prepare letter of recommendation of award. ASSUMPTIONS • The project will be bid only once and awarded to one contractor. DELIVERABLES A. Plan Revisions (if required) B. Letter of Recommendation TASK 6. CONSTRUCTION PHASE SERVICES. ENGINEER will support the construction phase of the project as follows. 6.1 Construction Support shall include: • The ENGINEER shall attend the preconstruction conference. • The ENGINEER shall visit the project site twice (2) per month as construction proceeds to observe and report on progress. ENGINEER shall create meeting agenda and record meeting minutes for each meeting. The ENGINEER shall review shop drawings, samples and other submittals submitted by the contractor for general conformance with the design concepts and general compliance with the requirements of the contract for construction. Such review shall not relieve the Contractor from its responsibility for performance in accordance with the contract for construction, nor is such review a guarantee that the work covered by the shop drawings, samples and submittals is free of errors, inconsistencies or omissions. The ENGINEER shall log and track all shop drawings, samples and other submittals. Page 7 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • As requested by the CITY, the ENGINEER shall provide necessary interpretations and clarifications of contract documents, review change orders, and make recommendations as to the acceptability of the work. • The ENGINEER shall attend the "Final" project walk through and assist with preparation of final punch list. 6.2 Record Drawings • The ENGINEER shall prepare record drawings from information provided by the CITY depicting any changes made to the Final Drawings during construction. The following information shall be provided by the CITY: o As -Built Survey o Red -Line Markups from the Contractor o Red -Line Markups from City Inspector o Copies of Approved Change Orders o Approved Substitutions • The ENGINEER shall modify the Final Drawings electronically and shall place a stamp on the plans indicating that they represent Record Drawings of the project as constructed. The stamp shall be signed and dated by the ENGINEER and shall be placed on each plan sheet, whether there are any revisions on the sheet or not. Each sheet shall clearly indicate all changes which apply to that sheet by clouding and numbering, or other suitable means. ASSUMPTIONS • 2 site visits per month are assumed. • Construction schedule is assumed at 30 months. • 10 submittal reviews are assumed. • 4 RFI's are assumed. • 4 Change Orders are assumed. DELIVERABLES A. Response to Contractor's Request for Information B. Review of Change Orders C. Review of shop drawings D. Final Punch List items E. Record Drawings TASK 7. FEMA COORDINATION SERVICES. Page 8 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC ENGINEER will prepare a LOMR application for PEC -4 - Phase 1 and 2 as outlined below. Preparation of a LOMR for Phases 3 and 4 will be considered an additional service to be authorized following the completion of construction. 7.1. Modeling • The ENGINEER shall utilize the XP -STORM model as developed in Section 2.2. • The ENGINEER shall develop a truncated hydraulic model representing PEC -4 Phase 1 and 2 improvements only. The ENGINEER will incorporate any changes during construction of Phase 1 and 2 into the model. 7.2 FEMA Submittal • The ENGINEER shall prepare LOMR submittal to FEMA including MT -2 forms and summary report. • The ENGINEER shall coordinate with FEMA for approval of the LOMR applications. • The CITY shall be responsible for all application fees to FEMA. ASSUMPTIONS • FEMA LOMR submittal to include summary report including figures and supporting data, FEMA required forms and digital model for application DELIVERABLES A. FEMA LOMR submittal. TASK 8. SURVEY AND SUE. ENGINEER will provide survey support as follows. 8.1 Design Survey • ENGINEER will perform field surveys to collect horizontal and vertical elevations and other information needed by ENGINEER in design and preparation of plans for the project. Information gathered during the survey shall include topographic data, utilities based on CITY records and observable surface features (it is assumed that SUE is not necessary), structures, trees 6" and larger, and other features relevant to the final plan sheets. • The minimum survey information to be provided on the plans shall include the following: — A Project Control Sheet, showing ALL Control Points, used or set while gathering data. Generally on a scale of not less than 1:400: — The following information about each Control Point; a. Identified (Existing. CITY Monument #8901, PK Nail, 5/8" Iron Rod) b. X, Y and Z Coordinates, in an identified coordinate system, and a referred bearing base. Z coordinate on CITY Datum only. c. Descriptive Location (Ex. Set in the centerline of the inlet in the South Page 9 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC curb line of North Side Drive at the East end of radius at the Southeast corner of North Side Drive and North Main Street). 8.2. Temporary Right of Entry Preparation and Submittal • Prior to entering the property for the purposes of field survey and data collection, the ENGINEER shall prepare letters for Temporary Right of Entry for property owners and provide them to the surveyor for distribution. The CITY shall gain access permission to properties where access is denied. 8.3 Subsurface Utility Engineering Provide a Subsurface Utility Engineering (SUE) Quality combination of Level B and A as described below. The SUE shall be performed in accordance with Cl/ASCE 38-02. Quality Level D • Conduct appropriate investigations (e.g., owner records, County/CITY records, personal interviews, visual inspections, etc.), to help identify utility owners that may have facilities within the project limits or that may be affected by the project. • Collect applicable records (e.g., utility owner base maps, "as built" or record drawings, permit records, field notes, geographic information system data, oral histories, etc.) on the existence and approximate location of existing involved utilities. • Review records for: evidence or indication of additional available records; duplicate or conflicting information; need for clarification. • Develop SUE plan sheets and transfer information on all involved utilities to appropriate design plan sheets, electronic files, and/or other documents as required. Exercise professional judgment to resolve conflicting information. For information depicted, indicate: utility type and ownership; date of depiction; quality level(s); end points of any utility data; line status (e.g., active, abandoned, out of service); line size and condition; number of jointly buried cables; and encasement. Quality Level C (includes tasks as described for Quality Level D) • Identify surface features, from project topographic data and from field observations, that are surface appurtenances of subsurface utilities. • Include survey and correlation of aerial or ground -mounted utility facilities in Quality Level C tasks. • Survey surface features of subsurface utility facilities or systems. • The survey shall also include (in addition to subsurface utility features visible at the ground surface): determination of invert elevations of any manholes and vaults; sketches showing interior dimensions and line connections of such manholes and vaults; any surface markings denoting subsurface utilities, furnished by utility owners for design purposes. • Exercise professional judgment to correlate data from different sources, and to resolve conflicting information. • Update (or prepare) plan sheets, electronic files, and/or other documents to reflect the integration of Quality Level D and Quality Level C information. • Recommend follow-up investigations (e.g., additional surveys, consultation with utility owners, etc.) as may be needed to further resolve discrepancies. Page 10 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Provide Quality Level C to identify overhead utilities on the project and provide the overhead utility information on the SUE plan sheets. Level B (includes tasks as described for Quality Level C) • Select and apply appropriate surface geophysical method(s) to search for and detect subsurface utilities within the project limits, and/or to trace a particular utility line or system. • Based on an interpretation of data, mark the indications of utilities on the ground surface for subsequent survey. Utilize paint or other method acceptable for marking of lines. • Unless otherwise directed, mark centerline of single -conduit lines, and outside edges of multi -conduit systems. • Resolve differences between designated utilities and utility records and surveyed appurtenances. • Recommend additional measures to resolve differences if they still exist. Recommendations may include additional or different surface geophysical methods, exploratory excavation, or upgrade to Quality Level A data. • As an alternative to the physical marking of lines, the ENGINEER may, with CITY's approval, utilize other means of data collection, storage, retrieval, and reduction, that enables the correlation of surface geophysical data to the project's survey control. Level A • Expose and locate utilities at specific locations. • Tie horizontal and vertical location of utility to survey control. • Provide utility size and configuration. • Provide paving thickness and type, where applicable. • Provide general soil type and site conditions and such other pertinent information as is reasonably ascertainable from each test hole site. ASSUMPTIONS • A total of eighteen (18) pothole locations are expected for Level A SUE collection • The CITY will obtain Right of Entry (ROE) from necessary landowners. TASK 9. ROW SERVICES ENGINEER will support and perform activities related to ROW and easements as outlined below, per scoping direction and guidance from the CITY's Project Manager 9.1. Right -of -Way Research • The ENGINEER shall determine rights-of-way and easement needs for construction of the project. Required temporary and permanent easements will be identified based on available information and recommendations will be made for approval by the CITY. 9.2 Right-of-Way/Easement Preparation and Submittal. Page 11 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • The ENGINEER shall prepare documents to be used to obtain right-of-way and permanent and/or temporary easements required to construct the improvements. • The ENGINEER shall provide field staking of easements on private property to demonstrate limits of easements and assist in easement negotiations to be conducted by CITY. 9.3 Temporary Right of Entry Preparation and Submittal Prior to construction, the ENGINEER shall prepare letters for Temporary Right of Entries from landowners. It is assumed that letters will only be required for land owners adjacent to temporary construction easements or who are directly affected by the project and no easement is required to enter their property. ENGINEER shall prepare letters and CITY will mail them and coordinate with property owners. ASSUMPTIONS • A total of fifteen (15) permanent and fifteen (15) temporary easements are included. Right -of -Way research includes review of property/right-of-way records based on current internet based Denton Appraisal District (DAD) information available at the start of the project and available on -ground property information (i.e. iron rods, fences, stakes, etc.). It does not include effort for chain of title research, parent track research, additional research for easements not included in the TAD, right-of-way takings, easement vacations and abandonments, right-of-way vacations, and street closures. DELIVERABLES B. Right -of -Way, easement exhibits and metes and bounds C. Temporary Right of Entry Letters TASK 10. GEOTECHNICAL INVESTIGATION 10.1 Field Exploration • Select and mark five (5) boring locations and notify Texas 811, appropriate City department(s) and other agencies to request location and marking of existing underground utilities prior to the field exploration. • Coordinate with City to arrange access to boring locations in areas where access may need to cross private properties. • Arrange for two (2) full days of traffic control during drilling to maintain a safe working environment for the field crew. • Advance five (5) geotechnical borings along the Phase 3 and 4 alignment at locations that are accessible to a truck -mounted drill rig and free of subsurface and overhead conflicts. Each boring will be drilled to a maximum depth of 35 feet. Drilling fieldwork is expected to require three (3) full days of effort. Page 12 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Where required, existing pavement will be penetrated and then patched at completion. Areas drilled through landscaping grass will include a tarp or plywood to maintain cleanliness at completion. • During drilling, samples will be collected intermittently using continuous flight augers or hollow stem augers, with either split -spoon or tube samplers. Rock and rock -like materials will be tested insitu using a TxDOT Cone Penetration Test with rock core samples collected, when possible, in a maximum of two borings. • Groundwater levels will be collected during drilling, at completion, and after a period of 15 minutes. After collecting these readings, the boreholes will be backfilled with auger cuttings. • Provide an Engineer or Geologist experienced in logging borings to direct the drilling, log the borings, and handle and transport the samples. Visual classification of the subsurface stratigraphy shall be provided per the Unified Soil Classification System (USCS). 10.2 Laboratory Testing • Testing shall be performed on samples obtained from the borings to determine soil classification and pertinent engineering properties of the subsurface materials. FNI will select samples for laboratory testing, assign tests, and review the test results. Testing will be performed by a geotechnical testing subcontractor. • Laboratory tests will be assigned based on the specific subsurface materials encountered during exploration. Test type and quantity may vary, but are expected to include: liquid and plastic limits, percent passing the no. 200 sieve or gradation, moisture content, dry unit weight, and unconfined compressive strength. 10.3 Engineering Analysis and Study Report Prepare a summary report (in technical memorandum format) of the geotechnical investigation to include: • Appendix with the boring locations, boring logs, laboratory test results, and a key to the symbols used. • Discussion of subsurface conditions and soil properties indicated by the field and laboratory work, and the implications for design. • Recommendations for use during design of the junction box foundations, including allowable bearing pressure, settlement potential, and equivalent lateral earth pressures due to backfill. • Recommended pavement thicknesses for Mulberry Street using standard City sections, including subgrade modification requirements. • General discussion of expected construction related issues. • Earthwork related recommendations for use during development of the plans and specifications. The geotechnical engineer will collaborate with the design team on the implementation of recommendations, and will review submittals to assist with geotechnical related items. 10.4 Design of Excavation Support for Existing Structures • Prepare a technical memorandum providing proposed excavation retention systems that are for the protection of existing structures, including type, Page 13 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC parameters for design, minimum geometry for stability, and the results of the analysis. • Provide a typical section and details for the excavation retention system, and assist lead designer with alignment for plan and profile sheets. DELIVERABLES A. One (1) hard copy and one (1) electronic copy of Geotechnical Report. TASK 11. PUBLIC INVOLVEMENT • ENGINEER shall use already prepared project drawings and attend public meeting to help explain the proposed project to residents. • Engineer shall attend the following meetings o After 30% Design Approval o After 90% Design Approval o Prior to start of construction ADDITIONAL SERVICES NOT INCLUDED IN THE EXISTING SCOPE OF SERVICES CITY and ENGINEER agree that the following services are beyond the Scope of Services described in the tasks above. However, ENGINEER can provide these services, if needed, upon the CITY's written request. Any additional amounts paid to the ENGINEER as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. These additional services include the following: • Negotiation of easements or property acquisition. • Revisions to easement documents as a result of negotiations or project changes after prior City direction and approval • Services related to development of the CITY's project financing and/or budget. • Services related to disputes over pre -qualification, bid protests, bid rejection and re -bidding of the contract for construction. • Construction management and inspection services • Performance of materials testing or specialty testing services. • Services necessary due to the default of the Contractor. • Services related to damages caused by fire, flood, earthquake or other acts of God. • Services related to warranty claims, enforcement and inspection after final completion. • Services to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. • Performance of miscellaneous and supplemental services related to the project as requested by the CITY. • Stormwater Pollution Prevention Plan (SWPPP) permitting • Section 404 of the Clean Water Act permitting • Section 10 Permitting with the USACE. • Preparation of a formal written request for USACE authorization under a letter of permission procedure. Page 14 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC • Preparation of a standard individual Section 404 permit application. • Preparation of Environmental Information Document, Environmental Assessment, or an Environmental Impact Statement. • Meetings or consultation with the USACE or other resource agencies, except as specifically noted in the scope of services. • Presence/absence surveys for federally listed threatened/endangered species. • Preparation of a mitigation plan to compensate for impacts to waters of the U.S. • Application to Texas Commission on Environmental Quality for individual 401 Water Quality Certification. • Application for General Land Office easements. • Application for Texas Parks & Wildlife Department Sand and Gravel Permit. • Additional field investigations or analysis required to respond to public or regulatory agency comments. • Field survey or analysis required for cultural resources investigations. • Consultation with the U. S. Fish and Wildlife Service under Section 7 of the Endangered Species act. • Expert representation at legal proceedings or at contested hearings. • Mitigation monitoring if required by permit conditions. • Monitoring for compliance with permit conditions. • Additional modifications to the compensatory mitigation plan. • Phase I or Phase II Environmental Site Assessment. Page 15 of 15 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC EXHIBIT 5 COMPENSATION Compensation to FNI for Basic Services in Attachment SC shall be computed on the basis of the Schedule of Charges, but shall not exceed One Million, Two Hundred Thousand Dollars ($1,200,000). If FNI sees the Scope of Services changing so that Additional Services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges. ScheduleofCharaes Position ji j Professional - 1 73 121 Professional -2 103 155 Professional -3 124 201 Professional -4 151 220 Professional -5 183 263 Professional -6 192 364 Construction Manager - 1 92 118 Construction Manager - 2 107 165 Construction Manager - 3 157 185 Construction Manager - 4 165 242 CAD Technician/Designer - 1 64 114 CAD Technician/Designer - 2 94 142 CAD Technician/Designer - 3 123 183 Corporate Project Support - 1 40 119 Corporate Project Support - 2 73 142 Corporate Project Support - 3 90 288 Intern/ Coop 39 70 Rates for In -House Services Tech noloavCharae Bulk PrintinaandReoroduction $8.50 per hour B&W Color Small Format (per copy) $0.10 $0.25 Travel Large Format (per sq. ft.) Standard IRS Rates Bond $0.25 $0.75 Glossy / Mylar $0.75 $1.25 Vinyl /Adhesive $1.50 $2.00 Mounting (per sq. ft.) $2.00 Binding (per binding) $0.25 OTHER DIRECT EXPENSES: Other direct expenses are reimbursed at actual cost times a multiplier of 1.15. They include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from the FNI office and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. For Resident Representative services performed by non-FNI employees and CAD services performed In-house by non-FNI employees where FNI provides workspace and equipment to perform such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. These ranges and rates will be adjusted annually in February. Last updated February 2017. 350022017 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC Exhibit 6 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. Name of vendor who has a business relationship with local governmental entity. N/A 2 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. N/A Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 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? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. N/A 4 X I have no Conflict of Interest to disclose. 5 DocuSagnea by: 12/7/2017 a Fg'f�fgCet tlobr�g t�u�iness witla'the governmental entity Date DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC HOUSE BILL 89 VERIFICATION I, Kelly Dillard s the undersigned representative of Freese and Nichols, Inc. (Company Name) (hereafter referred to as company being an adult over the age of eighteen (18) years of age, verify that the company above-named, under the provisions of Subtitle F, Title 10, Government Code Chapter 2270: 1. Does not boycott Israel currently; and 2. Will not boycott Israel during the term of its contract with City of Denton. Pursuant to Section 2270.001, Texas Government Code: 1. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli -controlled territory, but does not include an action made for ordinary business purposes; and 2. "Company" means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit. COMPANY REPRESENTATIVE: occoasagneai by: By: Its: vice President Date: 12/7/2017 DocuSign Envelope ID: 7B04A9A0-A3FD-498C-A407-A5E3E605E5AC SENATE BILL 252 CERTIFICATION I, Kelly Dillard , the undersigned representative of (Company Name) being an adult over the age of eighteen (18) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252.152 and Section 2252.153, certify that the above-named company is not listed on the website of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806.051, Section 807.051 or Section 2253.153 of the Government Code. I further certify that should the above-named company enter into a contract that is on said listing of companies on the website of the Comptroller of the State of Texas which do business with Iran, Sudan or any Foreign Terrorist Organization, I will immediately notify the City of Denton Purchasing Department. COMPANY REPRESENTATIVE: DocuSfgnedi by: By: Its: vice President Date: 12/7/2017 / 1I131HX3 G S41WI-1 4t)lgfOjd V'S C 19SY24d V -33d 60L9L XI'4'A-M WJ OOZ allnS ezeld leu011ew8lul 9901, A SION31NILl'i 3533MA T-aaaanvaana L wmm (133A)—N3D—N--scva- :--INI.— sLxe.L 'uo4uea jo Amo MLMdo --Nd T--- ...... ..... ...... ....... . . .. . O=S M --- m....... .... "T... ............................ L.... .......... .. ...... .. ....... .. ...... . . ...... J CA 11 .. .. ...... J...... . ..... .. .... ..... 1... ama.,swYnnim ......... .. ... . ..... .. ... ........... .... ....... ........ .................. - i I ------- .......... .. 1 ....... ..... .......... IF 'x ........... ... �IS-NOINM . . ........ U) ........... IF------------------ l I . ......... II ........... . I .... . . .. ...... ............ ... ....... . ... ...... ....... . ....... ........ . ...... U).... . . ..... — ...... II I ...... ......... ... .... ....... 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U) 0 1 cc f C (L LU LIL..J' Certificate Of Completion Envelope Id: 7B04A9AOA3FD498CA407A5E3E605E5AC Subject: Please DocuSign: City Council Contract 6625 Source Envelope: Document Pages: 39 Signatures: 5 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -06:00) Central Time (US & Canada) Record Tracking Status: Original 12/7/2017 10:53:26 AM Signer Events Jamie Cogdell jamie.cogdelI@cityofdenton.com Senior Buyer City Of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Kelly Dillard skh@freese.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 12/7/2017 2:25:17 PM ID:4ecd50a5-dfcd-4b8e-969e-cO6e0e36cfa5 Jennifer DeCurtis jennifer.decurtis@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd Hileman Todd.Hileman@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Holder: Jamie Cogdell Jamie. Cogdel I@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 grycu-SM9nad 6y; Using IP Address: 97.75.108.6 E0WV$19..d py , 597253BAC458489.. Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jamie Cogdell 901 B Texas Street Denton, TX 76209 Jamie. Cogdel I@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 12/7/2017 11:21:44 AM Viewed: 12/7/2017 11:21:51 AM Signed: 12/7/2017 11:22:48 AM Sent: 12/7/2017 11:22:50 AM Resent: 12/7/2017 2:10:25 PM Viewed: 12/7/2017 2:25:17 PM Signed: 12/7/2017 2:35:37 PM Sent: 12/7/2017 2:35:42 PM Viewed: 12/7/2017 3:40:59 PM Signed: 12/7/2017 3:41:11 PM Sent: 12/7/2017 3:41:14 PM Signer Events Signature Timestamp Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1 f-805d-6bd7d9966f21 Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Thomas Hester th@freese.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri Thurman sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (None) 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 (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signature Status Status Status Status Status O ■ o. O - oP Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 12/7/2017 11:22:50 AM Sent: 12/7/2017 2:35:40 PM Sent: 12/7/2017 2:35:41 PM Carbon Copy Events Status Timestamp Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Lee Perry lee. perry@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/7/2017 3:41:14 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Kelly Dillard, Todd Hileman 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 DEN'rIN Legislation Text File #: ID 17-1691, Version: 1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or designee, to execute non -disclosure or confidentiality agreements as needed; providing for a repealer; providing for a severability clause; and providing for an effective date. City of Denton Page 1 of 1 Printed on 12/8/2017 powered by I._eggl;>karI City of Denton city Hale 41"X'IAIW�215 E. McKinney Street DENTON Denton, Texas www.cityofdenton.com AGENDA INFORMATION SHEET DEPARTMENT: City Manager's Office CM/ DCM/ ACM: Bryan Langley DATE: December 12, 2017 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or designee, to execute non -disclosure or confidentiality agreements as needed; providing for a repealer; providing for a severability clause; and providing for an effective date. BACKGROUND In the course of operations, the City of Denton is sometimes asked by private parties to execute Non - Disclosure Agreements (NDA) or Confidentiality Agreements (CA). The purpose of these agreements is to protect the identity of private businesses, the nature of their discussions with the City, and/or proprietary or confidential information each may be providing to each other. While infrequent, these requests usually are related to Economic Development or Denton Municipal Electric (DME) issues. Common examples of these requests include the following: ➢ As part of our efforts to recruit businesses to the community, we receive requests from companies to keep information confidential for competitive reasons. These companies have indicated concerns about competition for clients and/or employees; financial information relating to their investors (stocks) or information needed to discuss incentives; land acquisitions; and occasionally proprietary information such as salaries or number of employees. ➢ When we receive leads from the Governor's Office or other development agencies, each lead requests a NDA and provides a project name, not the company's name, in order to protect the identity of the company and preserve their interest in locating an operation in the City of Denton. ➢ When property acquisitions are involved in an economic development recruitment, companies sometimes request a NDA so that land owners do not know their identity and potentially increase the price of the property. ➢ DME receives requests for NDAs from power supply companies. These requests primarily are concerned with protecting their pricing information or other proprietary information. In short, there are situations when executing a NDA or CA are appropriate to consider if the circumstances warrant it. In the past, staff has executed these documents without any formal authorization from the City Council. As such, staff is proposing that the Council approve the attached ordinance. It authorizes the following: ➢ The City Manager, or designee, is authorized to execute NDAs or CAs after any such agreement has been approved by the City Attorney. ➢ The City Manager will maintain a copy of all agreements executed. As currently contemplated, this information will be managed by our new Compliance Officer. ➢ Beginning January 1, 2018, the City Manager will provide the City Council with a list of all agreements executed on a quarterly basis. It is the intent of management to only initiate a NDA or CA when it is absolutely necessary and in the best interest of the City of Denton. As such, while these agreements may need to be used in some circumstances, we expect to be judicious in the number of agreements that are approved and to institute a review process to ensure this information is properly communicated to the Council. RECOMMENDATION Staff recommends approval of the attached ordinance. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Agenda Information Sheet 2. Ordinance Respectfully submitted: Bryan Langley Deputy City Manager ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO EXECUTE NON -DISCLOSURE OR CONFIDENTIALITY AGREEMENTS AS NEEDED; PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City, from time to time, requires the use of non -disclosure or confidentiality agreements ("Agreements"); WHEREAS, the inability of the City to use such Agreements, and use them timely, limits the City's ability to participate in initial discussions of opportunities that maybe beneficial to the City; WHEREAS, it is a best practice and organizationally efficient for the Agreements to be executed administratively by the City Manager, or his designee, after approval of the same by the City Attorney; WHEREAS, the City Manager, or his designee, will maintain documentation, in either written or electronic form, for executed Agreements; WHEREAS, the City Manager shall, beginning January 1, 2018 and on a quarterly basis thereafter, provide to City Council a list of all agreements executed pursuant to this ordinance; WHEREAS, the City Council finds it is in the public interest for the City Manager, or his designee, to administratively execute non -disclosure or confidentiality agreements after approval of the same by the City Attorney, or his designee; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is authorized to execute non -disclosure or confidentiality agreements ("Agreements") as needed and only after the same has been approved by the City Attorney, without further authority, guidance, or direction from the City Council, and is further authorized to carry out the rights, duties, obligations and responsibilities of the City under the Agreements. SECTION 3. The City Manager, or his designee, shall maintain documentation, in either written or electronic form, for all Agreements executed pursuant to this ordinance. SECTION 4. The City Manager shall, beginning January 1, 2018 and on a quarterly basis thereafter, provide to City Council a list of all Agreements executed pursuant to this ordinance. SECTION 5. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this, ordinance are hereby repealed to the extent of any such conflict. SECTION 6. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to, any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 7, 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 KYA APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: