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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-652,Version:1
AGENDA CAPTION
Receive a report, hold a discussion, and give staff direction regarding the contract administration audit findings
and recommendations from Crawford and Associates, P.C.
City of DentonPage 1 of 1Printed on 5/3/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Procurement/Compliance
CM: Todd Hileman
DATE: April 10, 2018
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the contract administration audit
findings and recommendations from Crawford and Associates, P.C.
BACKGROUND
OnOctober 10, 2017, the Internal City Auditor provided an Audit Plan Report to City Council that identified
contract administration as one of the top 5 risks for the City. The plan stated contract administration
processes needed to be evaluated to determine if accountability was in place. The Internal Auditor resigned
later the same month, prior to beginning the contract audit.
On December 5, 2017, Crawford and Associates, P.C. was approved by Council for internal audit services
related to contract administration (Ordinance 2017-383, Exhibit 2). The outside firm was contracted to
perform the audit during the absence of an Internal City Auditor due to the potential level of risk identified
in the Audit Plan Report. The professional services were scheduled to be completed within the first quarter
of 2018.
The Professional Services Agreement Council approved contracted Crawford and Associates to review
policies and procedures for:
the assignment of the responsibility of authorizing contracts and monitoring contract compliance
throughout the life of the contract, including robust governance arrangements for contract
administration/monitoring;
monitoring contracts that identify specific responsible parties, including clear departmental officer
roles and responsibilities;
the identification of steps for addressing non-compliant vendors;
identifying procedures for monitoring performance on service delivery, reported on a regular basis,
and also the monitoring of contract expiration dates;
the establishment of processes for ensuring that contractors are paid in a timely manner and that the
financial position of the contract is monitored to help identify any overspends;
the effectiveness of procedures to assist in ensuring that contract terms and bonding and insurance
requirements are met, declining contractor performance is identified at an early enough stage to be
dealt with properly in line with contractual requirements, contract close-out activities are completed,
and contract monitoring activities and deliverables are documented; and
any other policies and procedures related to effective contract administration.
On January 4, 2018, Crawford and Associates conducted on-site kickoff meetings with City staff from
Finance, the In addition to discussing the overall
scope of work, Compliance personnel provided information from departmental interviews regarding
contract administration and a master list of city-wide contract
(goods and services), leases, memorandums of understanding, interlocal agreements, construction contracts,
hedging agreements, and other various types of agreements. From the provided list of 868 contracts,
Crawford and Associates requested supporting documentation for 62 varying types of agreements, which
was provided from Procurement, City Secretary, and/or departmental records.
During the week of January 16-18, 2018, Crawford and Associates conducted additional on-site interviews
and research with various City departments.
On March 19, 2018, a final report of contract administration findings and recommendations was provided
to City staff (Exhibit 3).
RECOMMENDATION
administration:
1. Develop formal policies concerning overall contract management (roles and responsibilities,
binding authority, recordkeeping, and contract templates).
2. Develop formal policies regarding federal awards to ensure compliance with Title 2 U.S. Code of
Federal Regulations (CFR) Part 200, Uniform Administrative Requirements, Cost Principles, and
Audit Requirements.
3. Review current written policies to ensure compliance with Uniform Guidance requirements outlined
in 2 CFR 200.317-.326.
4. Implement a routine training program for City employees who work with contracts and grants.
5. Implement a review process to ensure Council approved contracts are executed for the same
amounts.
6. Implement a routine review of the contract administration process of all City departments to ensure
best practices of proper documentation, monitoring, and compliance.
7. Implement a system for tracking all City contracts.
8. Implement a formal process for the Legal department to timely notify other appropriate City
departments when a contract needs to be updated with new legal language.
City Management agrees with the reported findings and acknowledges there have been deficiencies in the
contract administration process.
ESTIMATED SCHEDULE OF PROJECT
The City is working to improve contract management processes and procedures. Below is a listing and
schedule of current and upcoming initiatives to address the recommendations:
Implementation of contract management software Spring 2018
Annual contract reviews by Compliance Spring 2018
Adoption of contract administration policies and procedures Summer 2018
Materials Management and Payment Procedures Manual update Fall 2018
Adoption of grant and federal funding policies and procedures Winter 2018
Contract and grant training program for City staff Spring 2019
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
On December 5, 2017, Crawford and Associates, P.C. was approved by Council for internal audit services
related to contract administration (Ordinance 2017-383, Exhibit 2).
FISCAL INFORMATION
Crawford and Associates was contracted for an amount not to exceed $40,000, including travel and
incidental costs. These expenses will be funded from Internal Audit Administration account 105001.7854
in the General Fund.
STRATEGIC PLAN RELATIONSHIP
-oriented road map that will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this
specific City Council agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Organizational Excellence
Related Goal: 1.1 Manage financial resources in a responsible manner
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Ordinance 2017-383 Crawford and Associates PSA
Exhibit 3: Crawford and Associates Audit Report
Exhibit 4: Presentation
Respectfully submitted:
Cassey Ogden
Director of Procurement & Compliance
Prepared by:
Jamie Lindsay
Compliance Officer
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Exhibit1
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND GENUINE PARTS COMPANY
(D.B.A. NAPA AUTO PARTS)
(RFP # 5641)
THIS CONTRACTis made and entered into this date ______________________, by
and between Genuine Parts Company, d.b.a. NAPA Auto Parts, a corporation, whose address is
2999 Circle 75 Parkway, Atlanta, Georgia 30339, 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 document
RFP 5641 Fleet Vehicle and Equipment Integrated Parts Inventory Support 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
(b) Revised and Negotiated Scope of Work (
(c) Sample Profit and Loss Statement (Schedule 1)
(d) Standard Terms and Conditions C;
(e) Insurance Requirements D
(f) Lease Agreement ;
(g) Request for Proposal (RFP) (Fon File at the Office of the Purchasing
Agent);
(h) Form CIQ Conflict of Interest Questionnaire (Exhibit "G");
(i) Best and Final Proposal (Exhibit "H")
(j) Sample Reports (Exhibit I).
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions
of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence
first to the written agreement then to the contract documents in the order in which they are listed
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
CONTRACTOR
BY:_______________________________
AUTHORIZED SIGNATURE
Date:_______________________
Name:______________________
Title: _______________________
____________________________
PHONE NUMBER
____________________________
EMAIL ADDRESS
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY:
GEORGE C. CAMPBELL, CITY MANAGER
BY: __________________________________ Date:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: __________________________________
Contract # 5641 Service Agreement Page 2of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Contract #5641
Exhibit A
Special Terms and Conditions
Contract # 5641 Service Agreement Page 3of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Special Terms and Conditions
Total Contract Amount
The contract total for services shall not exceed an annual amount of $4,000,000 for a total not-to-
exceed amount of $12,000,000. Pricing shall be per Exhibit B attached.
Contract Terms
The contract term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one-year periods.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall be renewed each year, from the date of award by City Council, upon mutual written
agreement by both parties. The City shall notify the Contractor at least ninety (90) days prior to
the scheduled renewal date in accordance with the terms set forth hereinunder. 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.
Pricing
The pricing for all normally stocked, and locally available, items will be furnished FOB
Destination, Prepaid and Allowed, and the prices quoted for all non-stock items, non-locally
available items, special/custom and emergency orders will be furnished FOB Destination, Prepaid
and Added, which means that the Contractor initially pays the freight and then adds the freight
charges to its invoice to the City for reimbursement.
Firm Pricing Profile
The parties agree that C
products shall increase and decrease throughout the term of the Contract.
Price Adjustments
As stated above in the section entitled Firm Pricing Profile, prices on individual products shall
increase and decrease throughout the term of the Contract.
Cooperative Purchasing
This contract will be available for use by all governmental entities, providing there is no conflict
with any applicable statutes, rules, policies, or procedures. The governmental entities will have the
option to use the pricing as agreed to within the resulting contract.
Governmental entities will issue their internal purchase orders directly to the Contractor, however,
shall reference and cite the City of Denton contract number within the purchase order document.
After award, the Contractor agrees to collect, on behalf of the City, a service fee in the amount
of0.25% of the dollar amount of all issued purchase orders generated from any
governmental entities contracted, based on the use of this contract. The Contractor further agrees
to remit the service fee by check on a quarterly basis for the previous quarter spent through this
Contract # 5641 Service Agreement Page 4of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
contract, to Julia Klinck, Contract Administration Supervisor, at 901B Texas Street, Denton,
th
Texas 76209, on or by the fifteenth (15) day of each month, following the end of the quarter.
The Contractor shall also provide quarterly sales reports from the contract awards and Purchase
Orders issued from the Contract, for the purpose of billing and collecting the service fee, and for
compiling required purchasing history. This report shall be sent to
th
purchasing@cityofdenton.comon or by the fifteenth (15) day of each month. The Contractor
further agrees that the City of Denton shall have the right, upon reasonable written notice, to
accuracy of service fees charged to the Contractor.
Intellectually Property Indemnification
This section only applies to software owned by the Contractor and made available to the City.
The contractor will indemnify, defend and hold harmless the City, and its authorized users,
against any action or claim brought against the City, or its authorized users that is based on a
claim that software infringes any patent rights, copyright rights or incorporated misappropriated
trade secrets. Contractor will pay any damages attributable to such claim that are awarded
against the City or its authorized users, in a judgment or settlement. If the City or its authorized
claim, in the sole opinion of the City, or its authorized users, the Contractor shall, at its sole
expense (1) procure for City or its authorized users, the right to continue using such software
under the terms of this Contract; or (2) replace or modify the software so that it is non-infringing.
Rights toData, Documents, and Computer Software (Governmental Entity Ownership)
Any research, reports studies, data, photographs, negatives or other documents, drawings or
materials prepared by Contractor in the performance of its obligations under this contract shall be
the exclusive property of the City and all such materials shall be delivered to the City by the
Contractor upon completion, termination, or cancellation of this contract. Contractor may, at its
own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly
allow, or cause to have such materials used for any purpose other than the performance of
however, that contractor shall be allowed to use non-confidential materials for writing samples in
pursuit of the work.
The ownership rights described herein shall include, but not be limited to, the right to copy,
publish, display, transfer, prepare derivative works, or otherwise use the works.For the
avoidance of any doubt, the parties agree that Contractor cannot assign or leave with the City its
proprietary TAMS (Total Automotive Management System) upon termination or expiration of
the Contract.
Contract # 5641 Service Agreement Page 5of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Patent Rights
The Contractor agrees to provide an indemnity for intellectual property claims based on
intellectual property rights owned by Contractor but cannot provide a direct copyright, trademark
or patent indemnity for the products supplied pursuant to the contract, as contractor does not
manufacture the products. Contractor can agree to use reasonable commercial efforts to assist
the City in processing any infringement claim against the applicable manufacturer.
No Liquidated Damages
The parties agree that no liquidated damages of any kind will be assessed against Contractor under
this Contract for any reason.
Warranties
All products supplied pursuant to the contract are subject to the terms of written warranties
provided by the manufacturer of each product, and contractor shall use reasonable commercial
efforts toassist the City in processing all warranty claims that the City may have againsta
manufacturer. The manufacturers warranty will be the sole andexclusive remedy of the City
in connection with any claims concerning the products supplied to the City hereunder. ALL
OTHER WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING ANY
IMPLIED WARRANTIESOF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXCLUDED. Copies of the manufactu warranties are available
to the City upon request.
However, the Contractor shall pass through all available warranty benefits from the
applicable manufacturer to the City.In the event that any product does not conformto the
manufacturers warranty, the City may return such productto Contractor and Contractor will
process the Citys warranty claim with the manufacturer ofthe defective product. After the
manufacturer has accepted the claim from Contractor, Contractor,as the Citys sole and
exclusive remedy and the contractors soleliability, shall either, atitsoption: (i) replace the
product with a conforming product or (ii) issue a credit or refundfor the price of the product.
Shipping, Delivery, and Packaging
Identification of Shipments:
In addition to the complete destination address, each delivery must be clearlymarked with
the purchaseorder number. Each shipment must be accompanied by a packing slip.
Packaging and Labeling:
Contractor will use commercially reasonable efforts to ensure that allitems shipped will be
properly labeled, with weather resistant labeling, showing the brand name, package quantity, lot
number (ifapplicable) and any other necessary identifying information.
Special Delivery Requirements:
City Department representatives may have specific, internal delivery rules and policies. These
will be provided oneach purchase order issued. The contractor(s) will be required to adhere
tothose requirements.
Contract # 5641 Service Agreement Page 6of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Hours of Delivery:
Stock orders for inventory replenishment shall be delivered during the overnight shift
hours of 10:30 p.m. to 12:00 a.m. (Central) unless prior approval forafter-hours delivery
has been obtainedfrom the City. In the event of any approvalby the City for after-hours
delivery,Contractor may not invoice any additional charges for that delivery. Contractor is
encouraged to obtain Citys hours of operation at time of order.
Daily parts deliveries shall be accepted by City staff in between the hours of 6:30 a.m. and 5:00
p.m. (Central).
Delivery Schedule:
Respondents shall furnish, in the space indicated on the price sheet, a delivery schedule for
each line item as to time required for deliveryafter receipt of order (ARO) under normal
conditions. Delivery Days means calendar days, unless otherwise specified.Failure tostate
delivery time may disqualify Respondent. The City of Denton, at its sole option, may choose to
negotiatedelivery times.
Delivery Delays:
If delay is foreseen, Contractor shall give written notice to the City and must keep City
advised at alltimes of the status of order. Default in promised delivery (without accepted
reasons) or failure to meet specifications authorizes the City to purchase goods and services
of this solicitation elsewhere. The parties agree that Contractor will use reasonable commercial
efforts to meet required delivery times, but conditions out of C
such as adverse traffic or weather conditions, may delay deliveries and contractor will not be
liable in any manner for such delayed deliveries.
Compliant Products:
Providing products or materials which do not meet allspecification requirements does not
constitute delivery. Delivery does not occur until the contractor delivers products or
materials in full compliance with the specifications to Citys F.O.B. destination, unless
delivery isspecificallyaccepted, in whole or in part, by the Customer. City reserves the right to
require new delivery or arefundinthe event that materialsor productsnot meeting specifications
are discoveredafter payment has been made.
Restocking Fee:
The City may requestthat a contractor accept return of merchandise already delivered or that a
contractor cancel an order prior to delivery. If the returnisrequiredthrough nofault of the
contractor, the contractor may request a reasonable restockingcharge. The Customer may pay a
restockingcharge if the City determines that the chargeis justifiable.As a guideline,such charges
shall not exceed 10%. There shall be no fees charged for cancellation of an order prior to
shipment by the Contractor.
Safety and Environmental Hazards
The City does not warrant or guarantee against the possibility that safety or environmental
hazards or potential hazards (includ
facilities. Notwithstanding the foregoing, the City shall, at all times during the term of the
prevent any
Contract # 5641 Service Agreement Page 7of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
damaglocated in
the on-site store(s)) the roof, exterior walls, foundation, and structural portions of the on-site
store(s) and all portions of the electrical and plumbing systems lying outside of the on-site
store(s) but serving the on-site store(s).
All contractors to the City are required to ensure absolute safety standards are applied and
enforced. City will not be liable for injuries to Contractor employees to the extent such injuries are
caused by the negligent acts or omissions or intentional misconduct of Contractor or its employees.
Likewise, Contractor will not be liable for injuries to City employees to the extent such injuries
are caused by the negligent acts or omissions or intentional misconduct of City or its employees.
Known hazards shall immediately be reported and all safety precautions shall be taken to prevent
potential safety issues from occurring.
Contractor Standards of Performance
Monthly Time Standards - Contractors shall fully understand that the City relies on the product or
service of the solicitation to provide vital municipal services, and the availability and reliability of
the equipment is of the essence. With this in mind, the Contractor shall meet the following
performance standards at all times. Labor disputes, strikes, and other events, except those beyond
the Contractor's control such as acts of God, shall not relieve the Contractor from meeting these
standards. For service category, the Contractor must ensure the given level of service is achieved,
within the designated number of working hours.
Contractor shall deliver goods or services within specified delivery times for 95% of all orders.
Contract # 5641 Service Agreement Page 8of 76
Exhibit2
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-651,Version:1
AGENDA CAPTION
Receive a report, hold a discussion, and give staff direction regarding the City’s Compliance and Procurement
program and initiatives.
City of DentonPage 1 of 1Printed on 5/3/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Procurement/Compliance
CM: Todd Hileman
DATE: May 8, 2018
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the Compliance and
Procurement program and initiatives.
BACKGROUND
A beginning in fiscal year 17/18. This
division was formed in order to mitigate and manage risk by ensuring business practices and employees are
complying with policies, procedures, and applicable regulations. The division includes two positions, the
Director of Procurement and Compliance and the Compliance Officer. Assigned responsibilities include
improved oversight and procedures for contract administration and ensuring a fair and transparent
procurement process. The Compliance division has also been integral in drafting, implementing, and
training employees on a new employee Ethics Policy.
In October 2017, the former Internal City Auditor identified contract administration as one of the top 5
risks to the City. Due to this potential level of risk, Compliance began conducting departmental interviews
regarding contract administration in November 2017. During these interviews, it became obvious there
were widespread issues with how contracts were drafted, managed, and stored. These included confusion
about roles and responsibilities, inconsistencies in contract processes and approvals, and lack of a
centralized and organized document retainage system for all contract types. While procurement related
contracts follow a standard process and are ultimately housed in Laserfiche, non-procurement processes
were inconsistent and filed in many locations, often residing in the files of a single employee or
department. As a result of these interviews, one of the top priorities for Compliance staff was acquiring a
contract management software. In upcoming months, Compliance staff will be drafting policies and
procedures for non-procurement contracts.
Prior to the creation of the Compliance department, the total number of active contracts the City
maintained was unknown. Outside of Laserfiche for procurement contracts, there is not a single repository
for all contracts and templates. A master list of City contracts had been compiled based on departmental
submissions of their active agreements. This list includes over 800 Memorandums of Understanding
(MOU), contracts, interlocal agreements, and a variety of other documents. This list includes both
procurement and non-procurement agreements.
In addition to the internal review of contracts by Compliance, Council sought an outside firm to perform
audit services during the absence of an Internal City Auditor. Council approved the contract with
Crawford and Associates, P.C. in December 2017, and their audit of City contract administration took
place in January 2018. The audit included in-depth review of 62 City contracts, 2 of which were identified
as being non-compliant.
by Crawford and Associates, Compliance and Purchasing personnel are currently working on the following
initiatives to further mitigate contract risk:
Performing risk assessments of current procurement contracts;
Conducting peer reviews of contract documentation prior to Council consideration;
Utilizing an agenda checklist to ensure consistency between the contract and ordinance before
Council consideration; and
Conducting an additional Compliance review process,
for large procurement contracts over $2 million.
The following accomplishments have been achieved in quarters one and two of fiscal year 17/18:
Compliance:
Interviewed departments regarding contracts and current contract administration processes;
Completed training and certification as Leadership Professionals in Ethics & Compliance (LPEC);
Purchased a contract management software solution to improve contract compliance, track contract
expenditures, and manage not-to-exceed amounts;
Assisted Crawford and Associates, P.C. with contract administration audit;
Developed an ethics policy for all City employees, in conjunction with Human Resources and the
; and
Developed and facilitated ethics training classes for supervisors.
Procurement:
Implemented a non-disclosure/conflict of interest process and evaluation team diversity standards;
Completed training on alternative delivery methods with attorney Tim Matheny;
Completed contract administration training; and
Reorganized the Distribution Center to include Denton Municipal Electric logistics staff,
consolidating resources, creating efficiencies, and cross-training staff.
ESTIMATED SCHEDULE OF PROJECT
Additional initiatives scheduled for the last two quarters of fiscal year 17/18:
Evaluating and assessing the procurement card program, including opportunities for improvements
in training, process standardization, auditing, and reporting;
Implementing the contract management software solution;
Drafting policies and procedures for non-procurement contracts;
Completing in
everyday decision making; and
Revising the Procurement Manual to include:
o Updated policies, procedures, and practices
o Simplified format to make it easier to understand
o Clearly defined roles and responsibilities in solicitation and contract processes
o An incentive policy for public work projects
STRATEGIC PLAN RELATIONSHIP
The City o-oriented road map that will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this
specific City Council agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Organizational Excellence
Related Goal: 1.1 Manage financial resources in a responsible manner
EXHIBITS
Exhibit 1 Agenda Information Sheet
Exhibit 2 - Presentation
Respectfully submitted:
Cassey Ogden
Director of Procurement & Compliance
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-720,Version:1
AGENDA CAPTION
Receive a report from staff and the Denton Parks Foundation, hold a discussion, and give staff direction
regarding 1) the implementation of recommendations related to a review of the relationship between the Parks
Foundation and the City of Denton, and 2) potential options for future partnership opportunities between the
Foundation and City.
City of DentonPage 1 of 1Printed on 5/4/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:City Manager’s Office
CM:Todd Hileman
DATE:May 8, 2018
SUBJECT
Receive a reportfrom staff and the Denton Parks Foundation, hold a discussion, and give staff direction
regarding 1) the implementation of recommendations related to a review of the relationship between the
Parks Foundation and the City of Denton, and 2) potential options for future partnership opportunities
between the Foundation and City.
BACKGROUND
In October 2017, the City of Denton suspended our activities with the Parks Foundation so that a
comprehensive review of the contractual relationship and business practices could be examined. The City
also requested that the Parks Foundation cease any fundraising activities until this review could be
completed. The City hired the law firm of Lynn, Ross, and Gannaway,LLP, and the accounting firm of
BKD, LLP, to conduct the review, and the findings of this assessment were presented to the City Council
in February 2018. Attached in Exhibit 2is a summary of the recommendations that were identified in the
review, and inExhibit 3, a copy of the February 2018 recommendations that were outlined in a
presentation to the City Council.
Following the completion of the above described review, the City of Denton resumed discussions with the
Parks Foundation regarding their fundraising activities, and staff has held several productive meetings
with the leadership of the Foundation on these efforts. Attached as Exhibit 4is a copy of the letter that
was sent to the Parks Foundation in March to resume these discussions, and attached as Exhibit 5 is a
letter from the Parks Foundation to City Management requesting several items be considered.
Additionally, copies of recently approved policies by the Foundation related to Donors, Gifts, and Ethics
have been included as Exhibits 6 and7.
The purpose of this work session discussionis to update the City Council on the status of our progress in
implementing the attached recommendations. Additionally, staff and the Denton Parks Foundation will
discuss some itemsthe Foundation has proposedand request direction on how to proceed.
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 outstanding leisure, cultural, and educational opportunities
EXHIBITS
Exhibit 1 –Agenda Information Sheet
Exhibit 2 –Summary of Parks Foundation Review Recommendations
Exhibit 3 –February 2018 Presentation
Exhibit 4 –Letter to Parks Foundation
Exhibit 5 –Letter from Parks Foundation to City Management
Exhibit 6 –Parks Foundation Donor and Gift Policy
Exhibit 7 –Parks Foundation Ethics Policy
Exhibit 8–Presentation
Respectfully submitted:
Bryan Langley
Deputy City Manager
PF
COD
YSA
AG
PF
COD
YSA
AG
Mr.LangleyandMr.Hileman,
Itwasapleasuretomeetingwithyoubothoverthelastfewmonthsinregardsto
rebuilding.Personally,Iamverymuchlookingforwardtooutliningaformalagreement
DentonParks
withtheCityofDentontoemboldenthegreatworksweasafoundationhavecompleted
Foundation
overthelast31yearsforthiscityaswellassolidifytheabilitytocontinuethatsame
workinthefuture.
601E.Hickory
SuiteB
Sinceourmeeting,wehaverestartedourfundraisingactivitiesaswellasourfinancial
Denton,TX76205
operationsforthemanycivicorganizationswhouseusasapass-through.Whileweare
(940)218-0270
notlookingtobeginthelevelofexchangeofresourcesthatexistedbetweenourtwo
entitiespriortothisreviewuntilanofficialagreementisinplace,wedoplantocontinue
MollyMayoTampke
tosolicitandacceptgiftsastheycomeandsupportprogramsthatusecityfacilities.
ExecutiveDirector
IwouldliketothankyouforliftingthemoratoriumonourExecutiveDirector,Molly
Tampke,tobeginworkingwiththeParksandRecreationDepartmentagain.Weare
EXECUTIVE
veryexcitedtomeetMr.Packanandintroducehimtoourwonderfulvolunteerboardas
BOARD
wellasshowhimthegreatworkwehaveaccomplishedinthepast.Goingforward,we
TimSmith
seethatopenlinesofcommunicationbetweentheParksandRecreationDepartmentand
President
Mrs.Tampkeisvitaltoourcollectivesuccess.
PeteKamp
Itisalsonotlostonusthataformalagreementwilltaketime.Intheinterim,weasan
VicePresident
organizationhaveacoupleofhousekeepingitemstoattendtothatwerementionedinthe
SimoneRoyster
finalauditorreport.Firstly,bytheendofMarch,wewillhaveafinishedandboard-
Treasurer
approvedConflictofInterestPolicy.BytheendofApril,wewillalsohaveanapproved
DonorPolicytooutlinehowweaccept,credit,andinventorybothmonetaryandnon-
DonEdwards
monetarydonationstothefoundation.Thesetwonewproceduraldocumentswillcover
Secretary
alloftheinternalquestionsthatthereviewraised.
TimCrouch
PastPresident
Inregardstoanofficialagreement,thereareanumberofspecificdetailsthatwewould
liketoseeinregardstoalong-termpartnership,butletmebrieflytouchonthemajor
DIRECTORS
componentswewouldhopetoseefromanagreement:
StuartBirdseye
HutchIce
Re-establishingadministrativesupporttobothourExecutiveDirectoraswell
astotheFoundationasawhole.
JeanKeller
SpecificGuidelinesandProceduralstandardstogiftingmoneyforspecific
ChrissyMallouf
parksimprovementordevelopmentprojects
AnitaMartinez-
EstablishingadefinedsystemformeasuringParksFoundationimpacttothe
Strickland
cityandbenchmarksforthose.
LinnieM.McAdams
Definingthelinesofcommunicationandboundariesbetweenourtwoentities
.
BettyeMyers
ShellyRenfro
Intheinterim,wespecificallyarerequestingthattheCityandourselvescancometoan
RandyRobinson
agreementinthefollowingwaysuntiltheaforementionedlong-termagreementis
KevinRoden
workedoutandreviewedbytheCityCouncilwhentheirscheduleallows:
Permissiontocontinueactingasthepass-throughorganizationfortheYouth
RandiSkinner
SportsEnhancementFees.
StaciWallace
ToacceptandallowustoallocateourdonatedfundsforYouthSummer
Scholarships.
Toallowustocontinueactingasthepass-throughandfinancialoversight
organizationforcivicorganizationsthatutilizecityfacilitiesfortheirseasonal
events(i.e.CincodeMayo,Juneteenth).
Toallowustofacilitatea3-wayMemorandumofUnderstanding(MOU)for
anydonationsthataremadetousforspecificimprovementstocityparksand
recreationdepartmentfacilitiesorpropertythatshallbeapprovedand/or
reviewedbyCityCouncil.TheseMOUshouldbebetweenourselves,the
donor,andtheCityofDentonParksandRecreationDepartment.
Lastly,Iwouldliketoaddressoneofthefocalpointsofthereview:theEureka2buildandsomeoftheequipment
thatwaspurchasedtocompletesaidproject.Page12oftheBKDreportmakesitclearthatwhiletherewerecouncil
approvedordinancesthatwereusedtoapprovethecitytopurchasethisequipment,therewasnoexplicitdirectioninsaid
ordinancesforrepaymentbythefoundation.Asourtreasurers report showed us last month, we do have funds in the
Eureka 2 line i temfromcontinuedfundraisingthatcameinaftertheproject.Ouronlyfreedomthatwecurrentlyhaveasa
boardwhenitcomestoexpensingthismoneyisonnewequipmentorexpansionattheparkitself.Thesefundsarecurrently
notdesignatedtobeusedasarepayment. Weasafoundationplantodiscusswhatwewouldliketodowiththismoney
goingforwardandarewillingtodiscussthisfurtherwithcitystaffinthefuture,butuntilthereisacleardirectivethatweas
afoundationweresupposedtoreimbursethosefunds,we,asrepresentativesofourdonors,havenorighttousethatmoney
inthisway.
Thankyouagainforyourcontinuedsupportandoptimisticcandor.Welookforwardtoworkingwithyouintheyearsto
come.
TimSmith
BoardPresident
940.382.5676
Timothy.P.Smith@mwarep.org
www.dentonparksfoundation.com
T HE D ENTON P ARKS F OUNDATION D ONATION P OLICIES,
G IFT A CCEPTANCE, AND F INANCIAL P ROCEDURES
APPROVED: 4/26/2018
1
C ONTENTS
Policies Concerning General Financial
Policies Concerning Gift Acceptance
Policies Concerning Donor Recognition.7
Policies Concerning Fundraising, Gift, and General Accounting.9
Policies Concerning Matching Gifts10
Confidentiality Policy1
2
2
P OLICIES C ONCERNING U NRESTRICTED G IFTS AND F INANCIAL S UPPORT
THE DENTON PARKS FOUNDATION (DPF) is a 501(c)(3) non-profit organization. THE DENTON PARKS
FOUNDATION will accept gifts, donations, and in-kind support with no capital campaign or specific use
applied to such funds. These funds can be used at the discretion of the organization for any expenses as long
as the transaction is
goals. THE DENTON PARKS FOUNDATION reserves the right to decline any gift. Contributions to THE
DENTON PARKS FOUNDATION are tax-deductible to the extent allowable by law.
I.FRIENDS OF THE FOUNDATION
A. Certain funds and gifts may be
given to a specific project or capital campaign. These funds and gifts may go towards the
B. ay be used at the discretion of the Executive Director
as long as purchases over the specified amount of $1000 that are not already accounted for in
the board approved annual budget are approved by a majority vote of the board prior to the
expense. This vote should follow the rules and guidelines outlined in the by-laws.
II. EXECUTIVE DIRECTOR FINANCIAL SUPPORT
A.
accounting category and should be identified as such in Treasurer reports when given to the
board.
B. The financial support of the Executive Director, if it should come in one lump-sum, should be
received by the Treasurer in a timely manner outlined in an external agreement or
Memorandum of Understanding (MOU) as to allow for consistency in funding and accounting
January to December fiscal year.
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P OLICIES C ONCERNING G IFT A CCEPTANCE
THE DENTON PARKS FOUNDATION (DPF) is a 501(c)(3) non-profit organization. THE DENTON PARKS
FOUNDATION will accept approved unrestricted gifts and gifts for specific programs and purposes provided
that there is charitable intent on the part of the donor and that the gift supports and is consistent with THE
DENTON PARKS FOUNDATION financial goals. THE DENTON PARKS FOUNDATION
reserves the right to decline any gift. Contributions to THE DENTON PARKS FOUNDATION are tax-deductible
to the extent allowable by law.
I.GENERAL
A. Payment of commitments to THE DENTON PARKS FOUNDATION may take the form of one or a
combination of the following: cash or real property that can reasonably be expected to be converted
to cash within a practical time period (one to three years).
B. Commitments will be publicly recognized and/or commemorated as consisten
wishes and the guidelines approved by THE DENTON PARKS FOUNDATION. Requests by donors for
anonymity will be publicly honored though a limited number of employees, campaign leaders and
counsel may be notified of the identity of the donors for internal purposes only.
C. Public recognition of giving will be based upon the expressed desires of the donor and any policies
of THE DENTON PARKS FOUNDATION which govern donor recognition.
D. Gifts will not be accepted where there is no charitable intent on the part of the donor.
E. THE DENTON PARKS FOUNDATION reserves the right to refuse or return to donors gifts whose
functions and goals are inconsistent with that of THE DENTON PARKS FOUNDATION.
F. THE DENTON PARKS FOUNDATION will keep accurate record of names and addresses of all vendors
who are paid to do any work and are not Denton Parks and Recreation Department employees,
affiliated contractors, or volunteers. Acceptance of donations (cash or in-kind) by these vendors who
may then be credited with recognition for said donation towards ğƓǤ DENTON PARKS FOUNDATION
the DENTON PARKS FOUNDATION board.
II. PLEDGES
A. No verbal pledges will be recognized. A signed pledge, gift agreement, email or equivalent
documentation, signed and dated by the donor, must be in the possession of THE DENTON PARKS
FOUNDATION before a pledge is recorded as fulfilled. This will be strictly observed.
B. The normal pledge payment period for gifts to capital, endowment, and major gift projects will be
no more than five years unless otherwise approved by the executive director or Board Chair.
C. Permanent donor recognition will be based upon the full payment of pledge commitments within
the allotted pledge period based on a cash accounting method.
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III.PROPERTY GIFTS
A. In order for real property gifts to be recognized, complete transfer of ownership must occur with
appropriate documentation.
B. Donors will bear all expenses associated with gifts of real property, including environmental testing
and appraisal fees unless otherwise approved by THE DENTON PARKS FOUNDATION Board of
Directors.
C. All real property gifts received by THE DENTON PARKS FOUNDATION and disposed of within two
years from the date of receipt will be duly reported to the IRS as required.
D. All real property gifts will be subject to environmental evaluation prior to acceptance by THE
DENTON PARKS FOUNDATION. The extent of that review will be determined for each real property,
and the expense will be borne by the donor unless otherwise approved concurrent with Section
III.A.
E. Real property encumbered by a mortgage or other indebtedness or subject to any encumbrances
deemed unacceptable by THE DENTON PARKS FOUNDATION Board of Directors will not be accepted.
IV.GIFT VALUATIONS
A. Cash - In cases where gifts are made in cash, the valuation is the amount of the cash.
B. Real Property - Gifts of real property will be reported based on the appraised value as determined
by a qualified independent appraiser within 60 days of the date of transfer.
C. Gifts-In-Kind - Gifts-in-kind are tangible gifts other than cash, marketable or privately held securities,
or real property. --kind gift could be
obtained for at a reasonable retail price by a 501(c)3 of our stature. Gifts-in-kind of an
undetermined value will be recorded and acknowledged as received with no value stated.
D. Service - Gifts of service are contributions of actual, billable service directly related to the business
or profession of the provider. Gifts of services will be recognized at the level of actual expenses
invoiced but not to be paid. Evidence of a gift of service will be a canceled or voided invoice stating
the date, type of service rendered, quantity cost, total cost, and amount to be contributed or
forgiven. No service gift can be accepted by if this service is rendered by a volunteer Board of
Director who is acting in the capacity of their board position.
V. APPRAISAL REQUIREMENTS
A. Gifts of personal or real property, other than publicly traded securities, must be accompanied by an
appraisal if the estimated value exceeds $10,000. When the gift is to fund a specific recognition
opportunity, donors may be asked to make up any shortfall upon conversion to cash.
B. Donors of personal or real property gifts must seek their own legal and tax counsel. THE DENTON
PARKS FOUNDATION reserves the right to refuse gifts of personal or real property when it is
determined that the donor has not complied with IRS appraisal requirements or that the advice of
independent counsel is not obtained.
5
C. Donors of personal or real property gifts will receive an acknowledgment of the gift only when
complete transfer has occurred. The acknowledgment will not include any reference to the value of
the gift.
D. Donors will bear all costs associated with obtaining a qualified appraisal if needed.
VI.RESPONSIBILITY OF DONORS
A. Information concerning gift planning is to be for illustrative purposes only and is not to be relied
upon exclusively in individual circumstances. A letter of understanding from a donor of a personal
or real property gift may be required along with proof of outside advice being rendered before such
a gift will be accepted.
B. All potential or proposed planned gifts may be individually reviewed by the Executive Director and
Board of Director Chair. Prospective donors are encouraged to request, and may expect to receive,
a letter regarding agreements to restrictions placed upon the proposed gift by the donor.
C. Although representatives of THE DENTON PARKS FOUNDATION will provide all appropriate
assistance, the ultimate responsibility regarding evaluations, tax deductibility, and/or such counsel
as the donor may wish to secure is the responsibility of the donor.
D. To avoid conflicts of interest, the unauthorized practice of law, the rendering of investment advice,
or the dissemination of income or estate tax advice, all donors of personal and/or real property gifts
must indicate the professional advisors rendering opinion on the gift.
VII. GIFT ACCEPTANCE
A. The Executive Director or members of the DENTON PARKS FOUNDATION staff or Board of Directors,
and all volunteers invited to assist with fundraising on behalf of THE DENTON PARKS FOUNDATION
are authorized to accept gifts of unrestricted cash so long as the funds are turned over to the
Treasurer as soon as possible.
B. Any other gift requires the formal review of the Executive Director or Board of Directors.
VIII. GIFT PURPOSE
A. Friends of the Foundation or General Fund Gifts to the Friends of the Foundation or the General
fund may be designated to support specific areas of the operating fund of THE DENTON PARKS
FOUNDATION. Gifts to the fund are unrestricted and directly benefit the operating budget. Any gifts
that are given with no specification for use should
B. Specific Purpose Projects Gifts may be designated by donors to support specific projects and
events that the Denton Parks Foundation has oversight of.
C. Capital Campaign Gifts to a Capital Campaign may be designated to support approved specific
areas of the project and may provide naming opportunities provided that opportunity complies by
the donation guidelines herein as well as the rules and procedures of the municipal and state
governing bodies that be.
6
P OLICIES C ONCERNING D ONOR R ECOGNITION
I.PURPOSE
A. The purpose of donor recognition policies is twofold: (1) to provide a genuine and lasting form of
recognition for the generosity of benefactors to THE DENTON PARKS FOUNDATION and (2) to
encourage potential donors to raise their level of giving in order to achieve some form of
recognition.
II. PEERAGE
A. One of the principles behind the successful use of donor recognition is that of peerage. Individuals,
corporations, and foundations often wish to be seen among their peers, and this includes being
viewed as peers in their level of giving. To over-encourage anonymity sometimes diminishes the
effectiveness of donor recognition policies because of the loss of peerage. Unless anonymity or a
-
fundraising activities and publications to help solicit more donations through peerage.
III. ANONYMITY
A. Benefactors will be given the opportunity to choose anonymity, and this anonymity will be reflected
in all published lists and other forms of donor recognition. The following will be those individuals
who, for reasons of stewardship and security, will be informed of the amount of all pledges and the
names of all donors to the campaign including those who request anonymity: Executive Director,
Resource Development Manager, Chief Financial Officer, Campaign Manager, Campaign Chair(s) and
Campaign Counsel.
IV. PROVISIONS FOR RECOGNITION
A. Provisions will be made to recognize all donors to THE DENTON PARKS FOUNDATION regardless of
the size of their gift, while recognizing the wishes of those who choose to remain anonymous
donors.
V. FORMS OF RECOGNITION
A. There will be no standard rubric to determine what forms of recognition exist. Rather, this discretion
is left to the Executive Director, with Board of Director approval, on a per project basis.
VI. NAMED GIFT OPPORTUNITIES
A.
discretion is left to the Executive Director, with Board of Director approval, to grant on a per project
basis.
VII. DONOR RECOGNITION LEVELS
7
A.
left to the Executive Director, with Board of Director approval, on a per project basis.
VIII. PUBLICATIONS
A. Periodically, the names of members of donor recognition levels or reserved named gift
opportunities will be published in THE DENTON PARKS FOUNDATION publications, newsletters,
and campaign updates. The purpose of these publications will be twofold: (1) to show appreciation
for pledges made and (2) to encourage others to make significant and stretch philanthropic
commitments.
IX. PLEDGE PAYMENT AND RECOGNITION
A. All forms of permanent recognition will be based upon pledges paid. Conversely, those donors with
unpaid pledges will not be given permanent recognition until such pledges are fulfilled.
XI. EXCEPTIONS
A. The Board is empowered to grant any exception to these general policies in order to encourage
significant gifts or improve benefactor relationships.
XII. ESCAPE CLAUSES
A. If a donor defaults on the pledge or wishes to have the recognition removed, the Board will
recommend to the custodian of the property in question (if it is not owned by the Foundation)
to have the recognition se.
8
P OLICIES C ONCERNING F UNDRAISING, G IFT, AND G ENERAL A CCOUNTING
I.SPECIFIED PROJECT CAMPAIGN FUNDRAISING PERIOD
A. The fundraising period will be the total time encompassed by the active cultivation, solicitation and
payment of pledges for The Denton Parks Foundation including those gifts made during the planning
phases of any one certain project or campaign. The beginning and ending date for counting
commitments to a campaign or project is to be set by the Board of Directors at the recommendation
of the specific project or campaign Steering Committee (if applicable).
II. COUNTING
A. Only those gifts and pledges actually received and/or committed during the specified period
identified for the campaign will be counted in the campaign results.
B. The Treasurer and Executive Director shall keep committed pledges vs. received pledges on a per
project basis to correctly reflect the money raised for said project for evaluation and measurement
purposes.
C. If phased, gifts and pledges will be counted in only the phase of the capital campaign in which they
were committed. No commitments will be counted for both the first phase and any subsequent
additional phase(s) of the campaign unless used in the capacity of demonstrating overall project
fundraising efforts.
D. The value of any canceled, withdrawn or unfulfilled pledge will be subtracted from the campaign
and phase totals when it is determined that the commitment will not be realized.
E. Any other non-cash, in-kind, or equivalent gifts or pledges shall adhere to the accounting polices set
forth above.
III.HANDLING AND RECORDING OF RECEIVED FUNDS
A. The Treasurer should receive notice of gifts being received as soon as reasonably possible.
B. The receipt of gifts and received pledges, both cash and non-cash, should be entered into the
correct accounting categories within three (3) business days per the accounting and Treasurer
guidelines in the by-laws
C. Any other rules or procedures regarding the handling and recording of received funds can be
referenced in The Denton Parks Foundation By-Laws as well as the Memorandum of Understanding
(MOU) with the City of Denton (should one exist and be currently in-force).
IV.NON-GIFT REVENUE
A. The following types of funds may be designated to a campaign or project, but will be reported as
non-gift revenue to the campaign. In campaign reports, these forms of revenue will be shown as
additions to the campaign from non-philanthropic sources:
Investment earnings on gifts contributed for campaign purposes;
Board-designated surplus income; and
Any other non-philanthropic or gift income to be used for the purposes of the campaign.
9
P OLICIES C ONCERNING M ATCHING G IFTS
I. SOLICITATION OF MATCHING GIFTS
A. Whenever and wherever possible, donors to the capital campaign will be encouraged to
seek out and take advantage of corporate or foundation matching gift programs.
B. If the corporation sponsoring the matching funds gift is also a vendor or contractor that has
been as such for work completed on behalf of the foundation, this relationship shall be
disclosed per the directions given in {Ļĭ͵ LͲ Ņ͵
section in the most recently approved version of this document.
II. DESIGNATION OF MATCHING GIFTS
A. Unless otherwise directed by the donor, corporation or foundation, income from matching
gifts will be designated for the same restricted purpose as the original gift or pledge of the
individual or family donor.
III. RECOGNITION FOR THE MATCHING GIFT DONOR
A. The corporate or foundation matching gift donor will receive credit and appropriate named
gift recognition and/or will be categorized in the appropriate donor recognition level in
respect to the dollar value of the matching gift.
IV. CREDITING OF MATCHING GIFTS
A. The value of the matching gift will be added to an individual or family gift and therefore will
entitle the individual or family donor to increased recognition or naming opportunities.
V. NAMED GIFT OPPORTUNITIES
A. The individual or family donor will have the opportunity to designate a named gift based
upon the combined value of their original gift and any matching gift received.
VI. REPORTING AND/OR PUBLISHING OF MATCHING GIFTS
A. In reporting or publishing matching gifts, the gifts of both the original donor and the
matching gift donor will be acknowledged.
10
C ONFIDENTIALITY P OLICY
A first principle of campaigning is to recognize the inherent personal dignity of any person who is
discussed as a prospective donor to the campaign, and
would diminish their dignity.
It is assumed that in the course of preparing for and conducting the capital campaign, Board members,
campaign leadership members, employees, and fundraising consultants will have the occasion to discuss
information of a personal, financial, and confidential nature. The following policies are established to
affirm THE DENTON PARKS FOUNDATION sincere commitment to protect the dignity and trust of its
benefactors, friends, and prospective donors.
A. All fundraising-related discussions concerning major gift prospects, whether individuals,
foundations, or corporations, are to be held in confidence.
B. While it is never the intent to discuss matters of a personal or family nature regarding
prospects, should such a disclosure happen in the course of a campaign meeting or
activity, such information will be treated with the highest level of confidence.
C. All information concerning financial capability, past giving patterns, specific gifts, and/or
personal disclosures about giving interests are to be treated confidentially that is
within the circle of those of who are assigned to the prospect or are providing
counseling or guidance relative to the prospect.
D. All discussions and/or reports of gifts and capital campaign commitments made during
concerning publicity or anonymity are expressed in the written confirmation of the
pledge or gift.
11
L ANGUAGE R EPOSITORY
POLICIES CONCERNING GIFT ACCEPTANCE
IV.GIFT VALUATIONS
A. Publicly Traded Securities In keeping with IRS regulations, gifts of securities will be valued at the
average market value of the specific security on the date the full interest in the transferred property
is received either electronically or physically.
B. Privately Held Securities - Gifts of closely held marketable securities will be valued based on a
qualified independent appraisal at the time of transfer. Generally, gifts of privately held securities
will be accepted only when conversion to cash within a five-year timeframe is expected.
C. Life Insurance - Gifts of life insurance will be valued, for recognition purposes, based on the
surrender value as of the date of the transfer.
VIII. MARKETABLE SECURITIES TRANSFERS AND SALES
A. In the case of a gift or pledge payment in the form of marketable securities, the marketable
securities will be sold immediately upon transfer of ownership and, ideally, no less than 24 hours
from the date and time of transfer.
B. As previously noted in Section IV. B. of these policies, gifts will be evaluated on the basis of the
average market value of the specific marketable securities on the date of transfer.
C. It is understood that the donor, in transferring ownership of the marketable securities, is making a
charitable contribution and, as such, has no rights concerning the disposition, sale, or retention of
any marketable securities given to THE DENTON PARKS FOUNDATION.
D. Any loss or gain in the value of the marketable securities, resulting from the timing of the sale, will
not be added or subtracted from the gift evaluation.
E. Upon written request by the donor of securities and the approval of the Executive Director,
Resource Development Manager, and Operations Director, THE DENTON PARKS FOUNDATION may
agree to hold the marketable securities as transferred for a designated period of time. In this case,
THE DENTON PARKS FOUNDATION willingly assumes all risks concerning potential benefit or loss
due to changing securities values because the stock is retained rather than sold.
IX. BEQUESTS AND TESTAMENTARY GIFTS
A. THE DENTON PARKS FOUNDATION will seek and accept gifts made as testamentary gifts through
wills and codicils to wills. For campaign purposes, bequests will be accepted from individuals of any
or some similar designation.
B. In order for bequests to be counted or considered for any present or future planned giving or
bequest recognition group, a copy of the will, specific section of the will pertaining to the bequest or
the specific codicil to the will must be on file at THE DENTON PARKS FOUNDATION. In lieu of the
specific document, a donor may file a gift agreement which states the nature of the bequest, its
12
estimated current value, the date the will or codicil was signed, and complete contact information
for the donor and executor named in the bequest.
C. When bequests are received, any instructions or restrictions from the donor, so long as they are
legal and reasonable, will be followed.
D. Also, gifts made from an Individual Retirement Account will be accepted for purposes of the capital
campaign if the individual is at least 80 years old.
13
6®«´³¤¤±²Ǿ %¬¯«®¸¤¤² £ 2¤¯±¤²¤³ ³¨µ¤²
The Denton Parks Foundation volunteers, staff and representatives are committed to ensuring
the highest ethical standards within the organization and the community. The success of the
Denton Parks Foundation and the reputation it maintains depend upon the ethical conduct of
everyone affiliated with the organization. Volunteers, staff and representatives set an example
for each other and for all community organizations by their pursuit of excellence in high
standards of performance, professionalism and ethical conduct.
While no one document can cover all of the challenges that may arise, the Code of Ethics
(Code) communicates key guidelines and will assist volunteers, staff and representatives in
making good decisions that are ethical and in accordance with applicable legal requirements.
I. Personal and Professional Integrity
A personal commitment to integrity in all circumstances benefits each individual as
well as the organization. We therefore:
A. Strive to meet the highest standards of performance, quality, service
and achievement in working towards the Denton Parks Foundation
mission.
B. Communicate honestly and openly and avoid misrepresentation.
C. Promote a working environment where honesty, open communication
and minority opinions are valued.
D. Exhibit respect and fairness toward all those with whom we come into
contact.
II. Accountability
The Denton Parks Foundation is responsible to its stakeholders, which include
member organizations, donors and others who have placed faith in our organization.
To uphold this trust, we:
A. Promote good stewardship of all Denton Parks Foundation resources,
including time, talent and treasure. This includes contributions, fees,
grants and pass-through money as well as physical resources and the
gift of time that is given to Denton Parks Foundation.
B. Refrain from using organizational resources for non-Denton Parks
Foundation purposes.
1
C. Observe and comply with all laws and regulations affecting Denton
Parks Foundation.
III. Solicitations and Voluntary Giving
The most responsive contributors are those who have the opportunity to become
informed and involved. We therefore:
A. Promote voluntary giving with board members, prospective and current
donors.
B. Refrain from any use of coercion in fundraising activities.
IV. Conflicts of Interest
9Ʒŷźĭƭ hŅŅźĭĻƩƭ ğƓķ 9Ʒŷźĭƭ /ƚƒƒźƷƷĻĻ
The Board President will serve as the Ethics Officer for the staff. The Executive
Committee will serve as the Ethics Committee for the Executive Director and the
volunteers and other representatives of the Denton Parks Foundation.
{ƷğŅŅ
In order to avoid any conflict of interest or the appearance of a conflict of interest,
which could tarnish the reputation of the Denton Parks Foundation as well as
undermine the public trust in the organization, Denton Parks Foundation, staff will:
A. Avoid any activity or outside interest which conflicts or appears to
conflict with the best interest of the Denton Parks Foundation
organization.
B. Ensure that outside employment and other activities do not adversely
affect the performance of Denton Parks Foundation duties or the
achievement of Denton Parks Foundation This does not
include any involvement in other volunteer boards, commissions, or
non-profit organizations.
C. Ensure that travel, entertainment and related expenses are incurred on
a basis consistent with the mission of Denton Parks Foundation and not
for personal gain or interests.
D. Decline any gift, gratuity or favor in the performance of Denton Parks
Foundation duties except for promotional items of nominal value and
any food, transportation, lodging or entertainment unless directly
related to Denton Parks Foundation business.
2
V. Volunteers and other Denton Parks Foundation Representatives
In order to avoid any conflict of interest or the appearance of a
conflict of interest, which could tarnish the reputation of Denton Parks Foundation,
as well as undermine the public trust in the organization, volunteers and other
representatives will:
A. Refrain from activities that might be construed as a direct conflict of
interest to the Denton Parks Foundation.
B. Refrain from attempting to influence the selection of staff, consultants
or vendors who are relatives or personal friends or affiliated with,
employ, or employed by a person with whom they have a relationship
that adversely affects the appearance of impartiality.
C. Denton Parks Foundation Volunteers should not knowingly take any
action, or make any statement, intended to influence the conduct of
Denton Parks Foundation in such a way to confer any financial benefit
on themselves, their immediate family members or any organization in
which they or their immediate family members have a significant
interest as stakeholders, directors or officers.
D. Disclose all known conflicts or potential conflicts of interest in any
matter before the Board of Directors, if they are Board members, or
any committee upon which they serve. They may participate in
discussion, but may not vote in connection with such matter.
E. Members of the Board shall annually file a disclosure of all known and
potential conflict of interest with the Executive Committee. This will
remain on file with the Denton Parks Foundation for three years.
VI. Confidentiality and Privacy
Confidentiality is a hallmark of professionalism. We therefore:
A. Ensure that all information, which is confidential, privileged or
nonpublic, is not disclosed inappropriately.
B. Respect the privacy rights of all individuals in the performance of their
Denton Parks Foundation duties.
3
VII. Political Contributions
Denton Parks Foundation encourages individual participation in civic affairs. As a
charitable organization, Denton Parks Foundation may not make contributions to
any candidate for public office or political committee and may not intervene in any
political campaign on behalf of or in opposition to any candidate for public office.
We therefore:
A. Refrain from making any contributions to any candidate for public
office or political committee on behalf of the Denton Parks Foundation.
B. Refrain from making any contributions to any candidate for public
office or political committee in a manner that may create the
appearance that the contribution is on behalf of the Denton Parks
Foundation.
C. Refrain from using any organizational financial resources, facilities or
personnel to endorse or oppose a candidate for public office.
D. Clearly communicate that we are not acting on behalf of the
organization, if identified as an official of the Denton Parks Foundation,
while engaging in political activities in an individual capacity.
E. Refrain from engaging in political activities in a manner that may create
the appearance that such activity is by or on behalf of the Denton Parks
Foundation.
VIII. Guidance and Disclosure
Volunteers, staff and representatives are encouraged to seek guidance from the
Executive Committee concerning the interpretation or application of this Code of
Ethics. Any known or possible breaches of the Code of Ethics should be disclosed.
Staff and representatives should contact the Executive Director. Volunteers should
contact the Chairperson. Reports of possible breaches will be handled in the
following manner;
A. All reports of possible breaches will be treated in confidence as much
confidentiality cannot be maintained, the individual disclosing the
possible breach will be notified.
B. All reports of breaches will be investigated and, if needed, appropriate
action taken based upon the policies of the organization.
4
C. Retaliation against a person who suspects and reports a breach in good
faith will be treated as an independent breach of the Code.
D. Denton Parks Foundation affirms prompt and fair resolution of all
reported breaches.
Disclosure of any Conflict of Interest:
I hereby fully disclose below all known and potential conflicts of interest to the Denton Parks
Foundation and to the Executive Committee. This notice will remain on file with the Denton
Parks Foundation for three years. Please check all that apply.
No known conflicts of interest
Possible Conflicts of interest are disclosed below:
Possible Conflicts of Interest
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Please sign and return page 5 to the Denton Parks Foundation staff. You may keep pages 1-4
of the Code of Ethics for your own records.
I have read the Denton Parks Foundation Code of Ethics and affirm that I will abide by them in
the Denton Parks Foundation fiscal year of January 1, 2018 through December 31, 2018.
Print name and Relationship with Denton Parks Foundation (e.g., Board/Volunteer/Staff)
Signature and Date
Return this form to the Denton Parks Foundation office, or email it to Molly Mayo Tampke
molly@dentonparksfoundation.com.
Thank You!
5
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-739,Version:1
AGENDA CAPTION
Receiveareport,holdadiscussion,andgivestaffdirectionregardingthe2017ReliabilityIndicesforthe
electric distribution system and DME’s actions taken to improve reliability.
City of DentonPage 1 of 1Printed on 5/4/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Denton Municipal Electric
CM: Todd Hileman
DATE:May 8, 2018
SUBJECT
BACKGROUND
In the 1940’s, electric system disruptions were the norm. In fact, many electric utilities would turn off their
generators at night only to restart them againthe next day. These outages wereexpectedby their customers
who were okay with this level of service.
Today’s expectations are different, and understandably so. Electricity is used for nearly every activity.
Electric utility customers expect electricity to be available, literally, at the flip of a switch 365/7/24. It is
key to productivity and profitability for industries and businesses, maintaining life at hospitals and
emergency rooms, and cooling/heating, cooking, and entertainment in our homes. The reality is, at all
levels of electric service–whether its generation, transmission, substation, or distribution –the system is
imperfect and experiences occasional service anomalies and outages. DME understands, even though the
system is imperfect, we have a responsibilityto provide reliable service so when issues arise, response is
quick to restore service.
Response is not the only action needed or taken. Behind the scene are engineers, linemen, and system
operatorsworking to gain in-depth understanding of the causes and prepare actions plans to address, and
minimize, future service irregularities. The most significant tool in this arsenal for understanding, and
addressing issues,is the Outage Management System (OMS). There are a number of ways for DME to be
notified of an outage. If an event occurs at the transmission or substation level – such as a breaker lockout
-relays in the substations willreport this, through SCADA, to the OMS. However, events that occur past
the distribution relays, in the past, reliedsolelyon customer calls to provide notification. Three (3) years
ago, the Engineering & Operational Technology group at DME completed integration of the AMI system
into the OMS. This action greatly improved the notification process to system operations and provides for
identification of amore exact location for the causal incident. OMS delivers a visual report of an event on
DME’s GIS mapping system. The OMS includes logic that provides system operators with the vicinity of
the causal incidentso crews can be dispatched accordingly. It is the data collected by the OMS that allows
DME engineers to understand the operation of the distribution system.
Page1of5
The Institute of Electrical and Electronic Engineers (IEEE) offersthe governance for practice standards
related to electric utilities such as the National Electrical Safety Code. Two primary standards,IEEE 1366
–IEEE Guide for Electric Power Distribution Reliability Indices,and IEEE 1782 –IEEE Guidefor
Collecting, Categorizing, and Utilizing Information Related to Electric Power Distribution Interruption
Eventsgive approachesforcollecting and categorizing power anomalies that occur on the electric
distribution system. It is important to note that, even though these documents are considered a “Standard”,
there is no legal or regulatory requirement for any electric utility to follow the practices within. DME’s
approach is to be in compliance with the practices and procedures for determination of reliability indices
that the documents put forth. Each index focuses on what IEEE 1366 classifies an “outage” as. DME
adheres to the Standard with one exception for the definition of an outage.DME uses 1 minute which is a
narrower bandwidth than the 5 minutes which isan industry practice.It is important to recognizeall
outages, which are greater than 1 minute, are counted includingoutages taken by DME crews to perform
maintenance or construction activities.
The first Standard, IEEE 1366, establishes the indices, and methodology to calculate, electric utilities could
use. There are a number of indices utilities can calculate; but there are four (4) principal indices every
utility calculates.These indices, along with their description and units of measure, are:
1)System Average Interruption Duration Index (SAIDI): This index measures the total duration of an
interruption for the average customer during the periodbeing studied.This index’s unitsare
minutes.
2)Customer Average Interruption Duration Index (CAIDI): This index measures the average time it
takes for service to be restored during the period being studied. This index’s units are minutes.
3)System Average Interruption Frequency Index (SAIFI): This index is the average number of times
a system customer experiences an outage during the period being studied. This index has no units.
4)Average Service Availability Index (ASAI):This index is the ratio of the total number of customer
hours that service was available during the period being studied. This index’s has no units but
results in a percentage.
As an additional index, DME Engineering ranks its substations and feeders performance. Performance is
calculated by multiplying duration (SAIDI) by frequency (SAIFI). The higher the result, the lower in
performance. Performance is not IEEE 1366 but is an unbiased method to provide understanding of how
well each component of theelectric distribution system is performing compared to its counterparts.SAIDI
is the principal index studied when comparing utility peers to one another, and is what the Public Utility
Commission of Texas focuses on in its decisions or rule making.
Thesecond Standard, IEEE 1782, provides direction on data to be collected during the interruption process
such as responsible system (generation, substation, transmission, distribution overhead or underground, or
customer equipment);causativeclassification coding; equipment failure coding, and interruption devices
for each outage. Attachment A to this document provides the classification codes for causes and equipment
used by DME. For each event, these codes are recorded into the OMS system –which is thesystem of
record for reliability events and service restoration.DME does compare itsreliability indices to the national
and state averages, other large municipal electric utilities in Texas, our local competitors including CoServ
Electric and Oncor, and our fellow TMPA members. This information is obtained through an annual report
generated, and released, by the United States Energy Information Administration. IEEE 1782’s direction
allows each utility to collect data in a relatively common fashion, but also allows the utility to be as detailed
as it wants to be. This is why a true apples-to-apples comparison between utilities in not possible.
There are three emphasesin a reliability study: 1) the number of events, 2) the amount of time (HH:MM:SS),
and 3) the customers affected.Thedata storedin the OMS database,along with the substation and/or feeder,
cause and equipment codes, customer addresses, and system operations and field comments provides for
the in-depth analysis performed by engineering. During the study period of January 1, 2017 to December
Page 2of 5
31, 2017(2017 Study Period), DME recorded 950 events with an accumulatedtotal time of 1474:30:21
(HH:MM:SS),and48,206 customers affected. Thisdata was analyzed at asystem, substation, and feeder
level.The analysis allowed for rankingthe substationsand feeders in performance. The higher the result
due tothe performance calculation (performance = SAIDI X SAIFI), the worst that substation or feeder is
ranked. DME’s top 10 worst performing feeders are identified throughthis same calculation.All
substations andfeeders get studied based on their causes and equipment to determine potential action plans
to alleviate or minimize future events.The worst performers; however, get more a focused reviewto
understand if events have commonality or exclusivity.Even though equipment is reviewed, cause codes
are fundamental in the development of action plans.
For the 2017 Study Period, there was commonalityofcauses.The top five (5) causes attributed to 654 out
of 950 events (69%), 1032:29:08 out of a total time of 1474:30:21 (70%), affecting 33,147 customers of the
48,206 total customers affected (69%). The top 5 are:
1)Small animals (cause code 600) were the cause of 213 events with squirrels tied to 199 of these
events. Small animals accounted for 289:40:32, and affected 11,467 customers.
2)Maintenance (cause code 110) was the cause of 179 events which accounted for 224:13:07 and
2,647 customers affected.
3)Decay/age of material/equipment (cause code 400) was the cause of 98 events which accounted for
251:12:04 and affected 4,745 customers.
4)Lightning (cause code 500) was the cause of 86 events which accounted for 129:08:04 and affected
9,356 customers.
5)Material or equipment failure (cause code 300) was the cause of 78 events which accounted for
138:15:21 and affected 4,932 customers.
DME’s action plan focuseson these fivecauses. Feeder sweeps have been completed in the areaidentified
as being the most affected by the top 5. Feeder sweeps, which started wholehearted in the October 2017
timeframe, included replacement, or installation of, animal protection on equipment prone to failure due to
small animals. DME has moved to a new provider of animal protection. This equipment appears to be a
superior product than the product used before. This product is easier to install by the linemen, but is more
difficult to remove, or “pop off.” Additionally, the product ismore fire proof so issues, such as faults, have
a better chance to be contained thus minimizing a potential spread of the fault to a catastrophic level.
Equipment getting animal protection includes transformers, risers, switches, capacitor banks, and lightning
arrestors. The issue of having squirrels and other small rodents burrowing into risers and chewing on the
cableto failureis addressed with the replacement of riser foam with metalduct plugs. Areas have been
reviewed for vegetation management, and where needed, trees were re-trimmed to discourage small animals
from jumping from treesto the power lines. Distribution technology has been introduced with “smart fuses”
being installed at locations deemed appropriate.Poles, transformers, and other appurtenances have been
inspected withdamaged or missing equipmentbeing replaced. DME hasalsoinvestigated the use of less
conventional approaches also such as fox urine.Even though there is not enough data at this time to confirm
this, it is believed these actions have significantly reduced events and improved the reliability in the targeted
areas.
DME is looking for ways to improve its systemreliability as a continual process. There will always be
worst performing feeders. Nevertheless, DME is committed to work to improve thevalues associated with
the reliability indices, SAIFI, CAIFI, and SAIDI.DME must continually look for new products or
applications that minimize the effects of causes that our out of our control, such as squirrels and lightning.
It is easy to see the next generation of electric distribution systems will be capable of increased performance
and reducedoutage time through distribution automation, or as it is commonly called the “smart grid.”
DME is reviewing all of itsfieldcontroldevices on the distribution system, and when appropriate, preparing
them to be Intelligent Electric Devices (IED’s) capable of real-time data transmission and event monitoring
back to a head-end system called an Advanced Distribution Management System (ADMS). These are the
Page 3of 5
systems that will make Denton’s“self-healing grid” possible. A simplistic approach to ADMS’ value is it
willminimize the amount of time customers experience an outage (restores service to as many as possible
while isolating the causeof the fault);can increase the efficiency(and lower the cost of energy) of the
distribution system operation by applying counter measures to operational issues such as power factor and
low voltage; and give DME engineers, system operators, and maintenance staff real-time data on the overall
health of the system.
FISCAL INFORMATION
This has no financial association.
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 –DME Classifications (IEEE 1782) for Cause and Equipment
Exhibit 3 –Presentation
Respectfully submitted:
George Morrow
General Manager, Denton Municipal Electric
Prepared by:
Jerry Fielder, P.E.
Division Engineering Manager –Distribution
Page 4of 5
Weather Code
Equipment Code
Cause Code
Weather Code
Equipment Code
Cause Code
Cause CodesEquipment Codes
2017
2018
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-275,Version:1
Receive a report, hold a discussion, and give staff direction regarding the City of DentonÓs special
event processes, application requirements, common issues, and recommendations for potential
solutions.
City of DentonPage 1 of 1Printed on 5/4/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:
CM/ DCM/ ACM: Bryan Langley
DATE: May 8, 2018
SUBJECT
processes, application requirements, common issues, and recommendations for potential solutions.
BACKGROUND
On January 9, 2018 Council Member Briggs
for special events. The City receives over eighty (80) special event applications annually for events,
including festivals, fun runs, car shows, and parades. The following report outlines the current process,
areas for improvement, recommendations, and items for policy discussion with Council.
Current Process
The City has a special events application to help event organizers navigate through the various processes
and prepare more effectively for a successful event in the City of Denton. Currently, the process begins
with an application being filled out and submitted to the Community Events Coordinator (CEC) in Parks
and Recreation at least six weeks prior to an event. The coordinator reviews the application and helps the
organizer determine what permits will be required from the City in order to hold the proposed event. There
are many different types of events requiring a variety of permits, which can lead to frustration and confusion
for event organizers and internal staff.
Over the last few months, an internal staff team has reviewed this process and researched twelve (12) special
events policies from other municipalities.
DISCUSSION
Areas for Improvement and Recommendations
following
changes be made to improve customer service, transparency, efficiency, and consistency.
1. Adopt a Special Event Policy or Ordinance There are currently six (6) ordinances that relate to
special events, including parades, food, fire code, amplified sound, alcohol in parks, and street
closures. These various ordinances have different application requirements, deadlines, and
processes, creating difficulties in coordinating special event application review. There also is no
overarching special event ordinance to tie together all aspects of event review and approval.
Staff recommends a special event ordinance be adopted to establish policy, enforce deadlines, and
increase consistency for applicants. An internal staff team has met numerous times throughout the
last few weeks to draft a special events ordinance based upon past experience. A copy has been
included as Exhibit 3.
2. Streamline Application Currently, organizers fill out a special event application as well as
possibly ten (10) other individual applications. The application process can be onerous for event
organizers and leads to duplication in the type of information collected among the various
applications. Staff recommends moving to a single application that covers all of the information
required by the City for special events.
3. Improve Coordination and Review The majority of applications and information regarding a
special events is currently submitted to the CEC; however, there is some communication directly
with departments which causes confusion for the event organizers. Staff is proposing that the CEC
be the single point of contact and project manager to coordinate and work with all departments
regarding questions in their area.
Once a special event application is received by the CEC, it is distributed by email to internal
departments to review and approve. Staff recommends researching and implementing a software
solution that allows internal stakeholders to review the various aspects of the special event
application, provide comments that are consolidated into a single location, and use a tracking
mechanism to ensure the application is being processed efficiently.
4. Issue a Special Event Permit If the draft special event ordinance is adopted, it would require the
issuance of a special event permit which is not done currently. A special event permit would be
issued based on the application and comments from staff, describe the approve aspects of the event,
and could make the permit contingent on the event organizer fulfilling certain requirements. All
relevant staff would receive a copy of the permit and be aware of the approved event parameters.
5. Create a Single Point of Payment Staff is working to develop a process for a single point of
payment for special events, which eliminates the need for event organizers to travel to multiple City
facilities to pay fees related to special events. Currently, event organizers must travel to the Civic
Center for payments of Parks related fees, City Hall East for payments of Solid Waste related fees,
and Development Services for payments of tent, food, and carnival/fair permit fees. Staff
recommends that all permit fees be paid at the Civic Center and distributed internally to the
appropriate departments.
Special Event Ordinance - Key Highlights
The draft special event ordinance proposes a few key changes to current practice. The following outlines
those proposed changes with an explanation for the recommendation:
1. Increase Liability Insurance Staff recommends increasing the requirement for $500,000 in
liability and $250,000 in liquor insurance to $1,000,000 in coverage for both. This level of insurance
is consistent with other City insurance requirements and would not have a large impact on event
organizers. Currently, 93% of events already carry the proposed level of insurance, and the increased
coverage would be approximately a $40 increase for events that purchase the minimum coverage
under the current requirements.
2. Submission Timeframe The ordinance would require that an application be submitted a minimum
of thirty (30) days prior to an event. Currently, application deadlines range from three (3) days to
six (6) weeks prior to an event depending on the type of individual permit being requested.
Additionally, staff proposes a minimum of sixty (60) days for events that have aspects requiring
City Council approval such as noise exceptions, alcohol in parks, or any in-kind service requests in
order to allow time to prepare items for City Council consideration.
3. Request a Parking Plan and Notification Plan In the draft ordinance, there are additional
application components that an event organizer must submit including descriptions of parking plans
as well as notifications to properties that may be impacted by the event. Currently, applicants are
not required to indicate where parking is available for the event or provide notification to affected
properties. Also, if an event plans to use a private parking lot, they would be required to show proof
that they have permission from the owner for use of the parking lot.
4. Clarify Traffic Responsibilities This ordinance would require that only Denton Police
Department employees or other sworn officers direct vehicular traffic, which has not been clear or
consistent in the past. Citizens and volunteers would still be allowed to direct pedestrians during a
fun run or other similar event behind a barricade, or assist in a lawful crossing of the street at a
crosswalk.
5. Repeal of Parade Ordinance- Staff proposes that by adopting a special event ordinance that the
parade ordinance be repealed. Parades would be regulated by the special event ordinance and all of
the provisions of the current parade ordinance have been covered in the draft special event
ordinance, except for fees related to funeral escorts which would be submitted to Council as a
separate ordinance.
6. In-Kind Services - Staff proposes that any request for in-kind services be included with the special
event application. These requests would be submitted to City Council for approval. Staff plans to
track in-kind service costs to be used for future reporting to Council. The application deadline has
been increased to a minimum of sixty (60) days prior to the event when in-kind services are
requested to allow enough time for City Council approval.
7. Revocation of a Special Event Permit - Staff proposes guidelines for denial and revocation of a
special event permit be included in the ordinance. The Director of Parks may deny a special event
permit if the date and location being requested has already been permitted for a different event, the
applicant provides a false statement, if an event would violate another City ordinance or other laws,
if the applicant had a permit revoked in the prior twelve (12) months or has not paid in full damage
done to City property, or if one or more directors find that the event would be a public threat. The
Director of Parks, Police Chief, or Fire Chief may revoke a permit if laws are being violated, or the
applicant made a false or misleading statement that causes concern for public safety.
8. Exempted Events Staff proposes that in the special event ordinance that certain events and entities
be exempted from the ordinance including motorcades, funerals, events held within a private special
event venue, events managed entirely by Parks and Recreation, and other governmental entities.
These types of events may be subject to certain regulations for aspects of a special event such as
food vendor permits, carnival equipment inspection, or noise ordinance, but would not be required
to submit a special event application and receive a permit.
Policy Options and Additional Discussion
There were a number of provisions that have been included in the ordinance that staff believes require
additional discussion with City Council during the work session. These items have been listed below:
1. Appeals - Staff has included in the draft ordinance that all appeals of denials or revocations of a
special event permit be sent to the City Manager. This has been suggested to allow review of an
appeal within five (5) days, so a decision can be made prior to the event. If appeals were made to
City Council staff suggests that the minimum deadline for an application to be submitted prior to
the event increase to accommodate a longer appeals process.
2. First Amendment Activity Staff has proposed in the draft ordinance that individuals wishing to
hold a demonstration related to First Amendment activity be required to submit a special event
application and receive a permit prior to the demonstration. It is not the intent of this ordinance to
restrict First Amendment activities, but this requirement is to ensure public safety staff are aware of
the event and properly prepared to maintain safety of the event and general public. Demonstrations
would not be subject to the fees associated with the event or insurance requirements, but are required
to submit an application a minimum of seven (7) days prior to the event to provide time for staff to
plan and coordinate. This is consistent with current practice. Parades would be subject to the normal
process for a special event permit since there is an additional requirement for staffing and review.
3. Block Parties - Staff has proposed also that neighborhood block parties be required to submit a
special event application, but would not be subject to fees or insurance requirements for the event.
The reduced requirement was meant to keep the special event application process from being a
deterrent for neighborhoods wishing to conduct a block party. Notifications would be required by
event organizers to properties affected by the block party.
4. City Council Approval - Another area of discussion is whether a special event permit would need
City Council approval if it met certain conditions. For example, staff looked at two circumstances
where City Council may want to review applications: (1) for events over 5,000 attendees and (2)
events planned in the downtown area. There are approximately ten (10) events held annually that
exceed 5,000 attendees and currently they do not require City Council approval, unless alcohol is
sold or consumed in a park, or a noise variance or in-kind services are requested. There are a total
of twelve (12) events that are held downtown area annually. City Council approves either in-kind
services, alcohol, or noise variance ordinances for 77% of the thirteen (13) total events that are either
over 5,000 attendees or in the downtown area. A listing of events that were approved in Fiscal Year
2016-17 and Fiscal Year 2017-18 year-to-date has been included as Exhibit 4.
Due to City Council already approving many aspects of these events (alcohol, parks, noise variance,
or in-kind services), staff would recommend that event approval is considered by City Council for
these two circumstances. Additionally, 1) events with significant attendance can have impacts on
traffic and the community that Council may want to review and approve and 2) events in the
downtown area must be considered carefully with any potential impacts to downtown businesses
and residents, parking and transportation needs, and developing a public safety plan.
RECOMMENDATION
and
recommendations to improve the process.
special event ordinance, a final draft ordinance, related guidelines document, and updated application
could be submitted to Council for consideration within ninety (90) days.
FISCAL INFORMATION
Staff is researching current software solutions that could be utilized for the application process and do not
anticipate that additional expenses would be required.
STRATEGIC PLAN RELATIONSHIP
-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- Presentation
Exhibit 3- Draft Ordinance
Exhibit 4- Event List
Respectfully submitted:
Sarah Kuechler
Director of Public Affairs
Prepared by:
Charlie Rosendahl
Management Analyst
ORDINANCE NO. _________
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE CODE OF
ORDINANCES, RELATED TO CHAPTER 25, STREETS, SIDEWALKS AND
PUBLIC PLACESARTICLE V, SPECIAL EVENTS; PROVIDING FOR
FINDINGS OF FACT; PROVIDING A REPEALER; PROVIDING SEVERABILITY;
PROVIDING CODIFICATION; CONFIRMING PROPER NOTICE AND MEETING;
AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the Municipal
Corporation possessing the full power of local self-government pursuant to Article 11, Section 5
of the Texas Constitution, Section 51.072 of Texas Local Government Code and its Home Rule
Charter; and
WHEREAS, the City possesses, pursuant to Chapter 311 of the Texas Transportation
Code, as amended, the exclusive control over and under the public highways, streets, and alleys
of the City; and
WHEREAS, the City possesses, pursuant to Chapter 282 of the Texas Local Government
Code, as amended, the exclusive control over and under public grounds of the City; and
WHEREAS, pursuant to Section 217.042 of the Texas Local Government Code, the City
Council of the City of Denton has the authority to define and prohibit any
nuisance within the limits of the City; and
WHEREAS, the City Council has additional authority to license, tax, suppress, prevent,
or otherwise regulate keepers of theatrical or other exhibitions, shows, or amusements pursuant to
Section 215.032 of the Texas Local Government Code; and
WHEREAS, there is an increasing number of special events on both public and private
land or property within the City necessitating the expenditure of City resources to protect the health
and safety of all citizens of the City; and
WHEREAS, the City Council has determined that it is in the best interest of the residents
of the City to enact regulations relating to special events and finds the attached amendments
reasonable and necessary; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. FINDINGS OF FACT. The foregoing recitals are incorporated into this
Ordinance by reference as findings of fact as if expressly set forth herein.
SECTION 2. AMENDMENT. That the Code of Ordinances, Denton, Texas, is hereby
amended by adding an article to be numbered Chapter 25 Article V, which said article reads as
provided in Attachment A, attached hereto and incorporated into this Ordinance for all intents and
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purposes.
SECTION 3. REPEALER. To the extent reasonably possible, Ordinances are to be read
together in harmony. However, all Ordinances, or parts thereof, that are in conflict or inconsistent
with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the
provisions of this Ordinance shall be and remain controlling as to the matters regulated herein,
including, but not limited to , which is repealed in its
entirety..
SECTION 4. SEVERABILITY. Should any of the clauses, sentences, paragraphs,
sections, or parts of this Ordinance be deemed invalid, unconstitutional, or unenforceable by a
court of law or administrative agency with jurisdiction over the matter, such action shall not be
construed to affect any other valid portion of this Ordinance.
SECTION 5. CODIFICATION. The City Secretary is hereby directed to record and
publish the attached rules, regulations,
by Section 52.001 of the Texas Local Government Code.
SECTION 6. EFFECTIVE DATE. This ordinance shall take effect upon the date of
final passage noted below, or when all applicable publication requirements, if any, are satisfied in
SECTION 7. PROPER NOTICE & MEETING. It is hereby officially found and
determined that the meeting at which this Ordinance was passed was open to the public, and that
public notice of the time, place, and purpose of said meeting was given as required by the Open
Meetings Act, Texas Government Code, Chapter 551. Notice was also provided as required by
Chapter 52 of the Texas Local Government Code.
___________________________________
CHRIS WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
By: _________________________________
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CITY OF DENTON
CODE OF ORDINANCES
CHAPTER 25: STREETS, SIDEWALKS, AND PUBLIC PLACES
ARTICLE V. SPECIAL EVENTS
Division 1. General
Sec. 25-212. Purpose
Due to their size and special requirements, some gatherings or organized activities may place
unique demands on public resources or pose a danger to public health, safety, and welfare. In order
to plan for these demands on public resources and to ensure that public health and safety is
protected, it is necessary that the city receive advance notice of these special events. The provisions
of this ordinance are intended to address those concerns and are not intended to place unnecessary
burden on any individual's right to association or freedom of expression.
Sec. 25-213. Definitions
(a) Special Event means a temporary event, gathering, or organized activity, including but not
limited to parades, bike races, marathons, walk-a-thons, fun runs, block parties, fireworks
displays, concerts, carnivals, or other types of races and festivals which involve one or more
of the following:
(1) Closing a public street;
(2) Blocking or restriction of city-owned property;
(3) Sale of merchandise, food, or beverages on city-owned property;
(4) Erection of a tent equal to or greater than four hundred (400) square feet in area;
(5) Installation of a stage, band-shell, trailer, van, portable building, grandstand, or bleachers;
(6) Placement of portable toilets on city-owned property;
(7) Placement of temporary no-parking signs in a public right-of-way;
(8) Placement of pedestrian boundary markers on city-owned property;
(9) Placement of waste additional containers; or
(10) Having an impact on public safety.
(b) Applicant means a person who has filed a written application for a special event permit.
(c) Application fee means a base fee established by City Ordinance for processing a special event
permit application.
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(d) City means the City of Denton, a Texas Home Rule Municipal Corporation.
(e) Expressive activity means conduct, the sole or principal purpose of which is the expression,
dissemination, or communication by verbal, visual, literary, or auditory means of opinion,
views, or ideas.
(f) First Amendment Activity means an expressive and associative activity on public right-of-way
that is protected by the United States and Texas Constitutions, including speech, press,
assembly, and the right to petition, but does not include commercial advertising or a Parade
as defined herein.
(g) Force majeure means and includes fire, casualty, strikes, lockouts, labor trouble, inability to
procure materials or supplies, failure of power, governmental authority, inclement weather,
acts of God, war or terrorism or the potential or actual threat thereof, public safety or public
welfare considerations, riots, or local, national, or international emergencies, or other reason
of like nature.
(h) Neighborhood Block Parties means an organized small-scale activity that closes a small
number of blocks on a local-service, residential street that are initiated by and intended to
attract only local residents who live on or in close proximity to the street being closed and not
intended for the general public.
(i) Parade means any assembly, march, demonstration, or procession upon public thoroughfares
within the City consisting persons, animals, or vehicles traveling in unison with an intent of
attracting public attention and that is reasonably likely to interfere with the normal flow or
regulation of traffic upon public thoroughfares.
(j) Permittee means the person to whom a permit is granted pursuant to this ordinance.
(k) Person means any individual, assumed named entity, partnership, association, corporation, or
organization.
(l) Public safety plan means any plan submitted by the applicant setting forth a description and
location of emergency services, evacuation, fire prevention, and fire suppression on the
property being used for the event, and emergency medical services for entertainers, exhibitors,
attendees, and other persons at the event.
(m) Sidewalk means that portion of a street between the curb lines or lateral lines of a roadway
and the adjacent property lines intended for the use of pedestrians.
(n) Special Event Permit means a permit as specified and obtained pursuant to this Article.
(o) Street means the entire width between the boundary lines of every way publicly maintained,
when any part thereof is open to use by the public for the purposes of vehicular traffic.
(p) Traffic plan means any plan submitted by the applicant that sets forth the regulations of traffic
control devices used to facilitate vehicular and pedestrian traffic safely and efficiently through
a temporary traffic control area associated with the event.
Sec. 25-214. Application of ordinance; exceptions
(a) All special events, except for those set forth in Section 25-214(b), must conform with all
applicable provisions of this Article unless otherwise noted.
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(b) The following events are exempt from the provisions of this Article:
(1) Motorcades which comply with all traffic laws;
(2) Funeral processions;
(3) Events which are authorized under a separate agreement or permit issued by the City;
(4) An event wholly contained on property specifically designed or suited for the event and
that holds a certificate of occupancy for such use, including adequate parking (e.g. a hotel
ballroom);
(5) Events managed entirely by the City of Denton Parks and Recreation Department; and/or
(6) A governmental agency acting within the scope of its functions.
DIVISION 2. PERMIT
Sec. 25-215. Permit required
(a) It shall be unlawful for any person to conduct a Special Event without first having obtained a
Special Event Permit from the City.
(b) It shall be unlawful for any person to participate in a Special Event for which the person knows
a Special Event Permit is required and has not been granted.
(c) It shall be unlawful for any person in charge of, or responsible for the conduct of, a Special
Event to knowingly fail to comply with any condition of the Special Event Permit.
Sec. 25-216. Application for permit
(a) A person seeking a Special Event Permit shall file an application with the Director of Parks
and Recreation, or his designee, upon forms provided by the City. Each application must be
accompanied by a nonrefundable fee as adopted by City Council.
(b) The Director of Parks and Recreation, or his designee, shall ensure that the other licenses and
permits, restrictions, regulations, fees for city services, safeguards, or other conditions deemed
necessary by individual city departments for the safe and orderly conduct of a Special Event
be requested, submitted, and approved before the Special Event Permit is granted. (i.e. health
permit applications, agreement with police department for police coverage, insurance, etc.).
Separate permits will be required for tents, awnings, canopies, or temporary signage in
conjunction with the event.
Sec. 25-217. Filing period
Except as provided below, a Special Event Permit application may be filed at least thirty (30)
days before the intended event date and not more than thirteen (13) months in advance of the
intended event date.
(a) Applications for permits filed less than thirty (30) days before the event may be considered
for public assembly or if the Director of Parks and Recreation, or his designee, determines
that the application can be processed in a shorter time period, taking into consideration
the nature and scope of the proposed event and the number and types of permits required
to be issued in conjunction with the Special Event Permit.
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(b) A Special Event application requiring City Council approval must be filed at least sixty
(60) days before the intended date of the event including, but not limited to, the sale or
consumption of alcohol in a city park, an exception to the amplified sound ordinance, and
requests for in-kind services.
(c) This provision supersedes prior ordinances in conflict herewith, including but not limited
to Chapter 25 Article IV of the Code of Ordinances.
Sec. 25-218. Submittal requirements
The application for a Special Event Permit shall set forth, as a minimum, the following
information:
(a) The name, address, and telephone number of:
(1) the person seeking to conduct the Special Event;
(2) if the Special Event is to be held for or by an organization: the organization and
the authorized agent of such organization;
(3) if the Special Event is to be held by or for a person other than the applicant: the
applicant shall file a written statement from that other person showing authority
to make the application; and
(4) the person who will be the event organizer and who will be responsible for
conducting the event.
(b) The proposed location(s) for the Special Event.
(c) The purpose of the Special Event and type of activities held during the Special Event.
(d) The date(s) and time(s) the Special Event will start and end.
(e) The time at which on-site preparation for the Special Event will begin.
(f) The approximate number of persons who are attending per day and for the duration of the
Special Event, including the estimated peak time and approximate number of attendees
during that peak time.
(g) The number and types of animals and vehicles that are part of the Special Event.
(h) In the case of a parade, the following additional information shall be provided:
(1) A route map;
(2) Approximate number of participants in the parade;
(3) Type of participants (ex. animals, floats, etc.); and
(4) Whether the parade will occupy all or only a portion of the width of the streets
proposed to be traversed.
(i) Proof of insurance for the Special Event.
(j) Site map(s) showing site setup indicating equipment that will be used by the Special
Event, including the following additional information:
(1) Location of first aid station and fire lanes for emergency equipment;
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(2) Location and orientation of loudspeakers and any other noise amplification devices to
be used by or at the Special Event, if any;
(3) Location and size of tents, awnings, canopies, food service booths, or other temporary
structures;
(4) Details for any planned signage; and
(5) Description of parking and public transportation.
(k) Description of the sale or consumption of alcoholic beverages, if any.
(l) Public safety plan.
(m) Traffic control plan showing streets and pedestrian ways that are impacted, and the
placement of barricades and detour signage.
(n) Description of the notification process to affected properties owned or occupied
immediately adjacent to the Special Event.
(o) Any other information which the City shall find necessary under the standards for
issuance.
Sec. 25-219. Standards for issuance of permit
A Special Event shall be conducted in such a way that it:
(a) Will not unnecessarily interrupt the safe and orderly movement of traffic near its location
or route.
(b) Will not require so great a number of police officers to properly police the Special Event
that normal protection for the City is prevented.
(c) Will not require so great a number of ambulances as to prevent normal ambulance service
to portions of the City other than that to be occupied by the Special Event and adjacent
areas.
(d) Will not interfere with the movement of firefighting equipment in route to a fire. The
concentration of people, animals, and vehicles at assembly points will not unduly
interfere with proper fire and police protection or ambulance service to areas near such
assembly points.
(e) In the case of a parade, the parade shall be scheduled to move from its point of origin to
its point of termination without unreasonable delays in route.
Sec. 25-220. Denial or revocation
(a) The Director of Parks and Recreation, or his designee, may deny a Special Event Permit if:
(1) The Special Event will conflict in time and location with another event for which a
Special Event Permit has already been granted.
(2) The applicant fails to comply with, or the event will violate, an ordinance of the City or
any other applicable law.
(3) The applicant makes or permits the making of a false or misleading statement or omission
of material fact on an application for a Special Event Permit.
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(4) The applicant has been convicted of violating this ordinance or has had a Special Event
Permit revoked within the preceding twelve (12) months.
(5) The applicant fails to provide proof of any license or permit required by this Article, City
Ordinance, or State law.
(6) The Special Event, in the opinion of one or more city departmental directors, would
severely hinder the delivery of normal or emergency services or constitutes a public
threat.
(7) Insurance requirements for the Special Event have not been met.
(8) The applicant has, on prior occasions, damaged City property and has not paid in full for
such damage.
(b) A Special Event Permit shall be revoked by the Director of Parks and Recreation, or his
designee, upon the following conditions:
(1) If the Police Chief, Fire Chief, Risk Manager, Building Official, or other City Official, or
their designated representatives, find that any of the provisions of this Article, City
Ordinance, or State law is being violated;
(2) If, in the judgment of the Police Chief or Fire Chief, a violation exists which requires
immediate abatement, they shall have authority to revoke a permit in the absence or
unavailability of the Director of Parks and Recreation; or
(3) The applicant made, or permitted to be made, a false or misleading statement or omission
of material fact on an application for a Special Event Permit.
(c) Prior to denial of a permit, the Director of Parks and Recreation shall consider alternatives
provided by the applicant to the time, place, or manner of the Special Event that will allow
the event to occur without posing a threat to health or safety, or otherwise violate state or local
law.
Sec. 25-221. Appeals
Decisions of the Director of Parks and Recreation, Police Chief, Fire Chief, or any other City
Official regarding the issuance of a Special Event Permit or the imposition of costs, additional
restrictions, or conditions upon the granting of a Special Event Permit may be appealed to the City
Manager, or in his absence, the Deputy City Manager or Assistant City Manager. Such appeal shall
be in writing and shall be delivered to the City Manager within five (5) business days after the
issuance of a decision by the Director of Parks and Recreation or other Official. When making a
determination regarding the appeal, the City Manager shall consider the application under the
standards provided in this Article and sustain or overrule the Director's decision. The decision of
the City Manager, Deputy City Manager, or Assistant City Manager shall be issued within five (5)
business days and shall be final.
Sec. 25-222. Force majeure
(a) The City may, in its sole discretion, postpone, cancel, suspend, or close any Special Event or
revoke a Special Event Permit for any force majeure event.
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(b) The City shall have no liability for such postponement, cancellation, suspension, or closing.
Further, the City shall have no liability for failure to postpone, cancel, suspend, or close a
Special Event for a force majeure event or any other reason.
DIVISION 3. SPECIAL PROVISIONS
Sec. 25-223. Applicant parking requirements
Applicants shall describe in the site plan that parking and public transportation for the Special
Event has been provided. If parking is planned to be on private property, written evidence that the
applicant has a right of possession of the property through ownership, lease, license, or other
property interest must be provided.
Sec. 25-224. City authority over parking
The City shall have authority, when reasonably necessary as determined by the Police
Department, to prohibit or restrict the parking of vehicles along a street, highway, or part thereof
adjacent to the site of the Special Event.
Sec. 25-225. Trailers
Trailers or other vehicles may be temporarily occupied as living quarters at the site of such
Special Events. Such vehicles and trailers shall be parked not less than three hundred feet
from any residential district, and shall otherwise comply with all City Ordinances and regulations.
Sec. 25-226. Amusement rides
Rides and/or attractions associated with Special Events shall conform with the statutory rules
and regulations set forth in Chapter 21, Article 21.53 of the Texas Insurance Code, designated the
Amusement Ride Safety Inspection and Insurance Act, as amended. Copies of inspection reports
will be required.
Sec. 25-227. Tents and temporary structures
Any Special Event which includes the use of a tent, canopy, or temporary structure shall meet
the requirements in the Fire Code. Fire lanes for emergency equipment must be provided and the
site prepared in a manner so as not to be a fire hazard as determined by the Fire Chief. A certificate
of flame resistance shall be provided for all tents, canopies, or other membrane structures that are
equal to or greater than four hundred (400) square feet in area.
Sec. 25-228. Food service
Where food service is provided, said operation shall be in compliance with all provisions of
the food and food establishment ordinances of the City, as well as all other applicable state and
local laws.
Sec. 25-229. Sanitary facilities
A sufficient number of portable type sanitary facilities must be provided on the premises as
determined necessary using standards as established by the Portable Sanitation Association
International (PSAI).
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Sec. 25-230. Animal waste
In the case of a parade, the applicant shall provide cleanup for animals along the parade route
at the conclusion of the parade in accordance with City Ordinance.
Sec. 25-231. Water usage and disposal of waste water
Applicant shall submit a plan for the disposal of waste water, including capture and
containment, which must be approved by the City prior to the Special Event. The plan must be in
accordance with all local, State, and Federal laws.
Sec. 25-232. Trash disposal
Trash disposal containers must be provided on-site for all outdoor Special Events. There may
be costs associated with the disposal of waste and recycling for larger Special Events in accordance
with City Ordinance. The appropriate waste and recycling containers to be selected are dependent
upon the location and the number of event participants and visitors, and is to be handled on a case-
by-case basis as determined by the director of solid waste and recycling. If events are held on City-
owned property, waste containers, excluding dumpsters, are available onsite for use by the Special
Event, and additional containers or dumpsters may be necessary to provide adequate waste and
recycling collection service. Recycling is required on all City-owned property in accordance with
Resolution R2008-004.
Sec. 25-233. Amplified Sound
When loudspeakers, or any other amplifying device, are to be used in conjunction with the
Special Event, the location and orientation of these devices shall be indicated, along with the
planned hours of use, on the site plan.
Speakers which are positioned so as not to adversely affect an adjacent residential district may
be used between the hours of 7:00 a.m. and 10:00 p.m., when a Special Event Permit has been
obtained. Applicants shall comply with all City noise ordinances and any variance requests require
approval by City Council.
Sec. 25-234. Signage
Signage used in accordance with the Special Event shall comply with the Sign Regulations of
the City of Denton under the provisions for special event and promotional signage found in Chapter
33 of the Code of Ordinances. Accordingly, signs advertising the event or directing potential
customers to the event site are expressly prohibited from placement in the City rights-of-way.
Sec. 25-235. Alcohol
It is the responsibility of the applicant to ensure that if alcoholic beverages will be possessed
and consumed during a Special Event that he/she/they have obtained all necessary City approvals
for such possession and use. If alcohol is being served on City-owned property, a law enforcement
professional is required to be onsite during the Special Event. If alcohol is being possessed or
consumed in a City park, it requires recommendation by the Parks and Recreation Board, approval
by City Council, and a Special Event application must be submitted to the Director of Parks and
Recreation, or designee, at least sixty (60) days prior to the event.
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For special events requiring a permit from the Texas Alcoholic Beverage Commission
(TABC), a copy of the state permit shall be required prior to the issuance of a Special Event Permit.
Additionally, Liquor Liability (Dramshop Liability) or Host Liquor Liability insurance coverage
in the amount of $1,000,000 shall be provided, naming the City of Denton as an additional insured.
Sec. 25-236. Inspections
Inspections may be required to show compliance with City Ordinances.
Sec. 25-237. Electrical equipment
All electrical equipment and installations shall comply with the currently adopted version of
the National Electric Code.
Sec. 25-238. Direction of traffic
Traffic control and direction upon City rights-of-way shall be allowed only by a Denton Police
Officer, Denton Parking Enforcement Officer, or other sworn law enforcement officer. Vehicular
traffic control and direction by private citizens in the City rights-of-way is prohibited.
Sec. 25-239. Police protection
When the presence of law enforcement officers is necessary for Special Events, the applicant
shall be responsible for reimbursing the City for the cost of providing police personnel. The cost
for City provided police personnel shall be the actual cost for the services provided. Actual cost
shall include salary, overtime (when applicable), and any vehicle usage cost (when applicable).
There is a minimum three-hour cost per individual.
The objective standards used to determine the number of law enforcement officers shall be as
follows:
(a) General traffic conditions in the area requested, both vehicular and pedestrian;
(b) Route to be taken if the Special Event is a parade or other moving event;
(c) Duration of the Special Event;
(d) Whether all or any portion of a roadway will be closed;
(e) The estimated number of people who will attend;
(f) Uses adjacent to the Special Event, such as residential or commercial areas;
(g) Time and date of the Special Event;
(h) Alcoholic beverages available for consumption at the Special Event;
(i) Fireworks at the Special Event;
(j) Wild or undomesticated animals at the Special Event; and
(k) Need for safety zones (fireworks launch area, balloon/helicopter launch or landing area,
etc.).
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All reasonable alternative routes, times, and locations will be considered so as to offer the
applicant the option that will provide the lowest costs consistent with the general public health,
safety, and welfare. The cost or a portion of the cost of providing police personnel to meet these
guidelines may be requested by the applicant and provided as in-kind services by the City upon
approval from City Council.
Sec. 25-240. Emergency Medical Services
When the presence of emergency medical service (EMS) is necessary for a Special Event,
the applicant shall be responsible for reimbursing the City for the cost of providing personnel. The
cost for City provided EMS personnel shall be in accordance with City Ordinances.
The objective standards used to determine the number of EMS personnel and ambulances shall be
as follows:
(a) The estimated number of people who will attend;
(b) The peak hourly attendance;
(c) Duration of the Special Event;
(d) Whether all or any portion of a roadway will be closed;
(e) Uses adjacent to the Special Event, such as residential or commercial areas;
(f) Time and date of the Special Event;
(g) Alcoholic beverages available for consumption at the Special Event;
(h) Fireworks at the Special Event; and
(i) Need for safety zones (fireworks launch area, balloon/helicopter launch or landing area,
etc.).
All reasonable alternative routes, times, and locations will be considered so as to offer the
applicant the option that will provide the lowest costs consistent with the general public health,
safety, and welfare. The cost or a portion of the cost of providing EMS personnel to meet these
guidelines may be requested by the applicant and provided as in-kind services by the City upon
approval from City Council.
Sec. 25-241. Fireworks/pyrotechnic displays
Any Special Event which includes any use of fireworks or pyrotechnic displays shall meet the
requirements in the Fire Code.
Sec. 25-242. Clean Up
The applicant shall clean up immediately after the conclusion of the Special Event.
Sec. 25-243. Traffic Control Plan
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Traffic control plans submitted as part of the Special Event application must be developed by
a professional engineer or licensed traffic control professional in accordance with the Texas
Manual on Uniform Traffic Control Devices.
Sec. 25-244. In-Kind Services
The City may find that a Special Event is in the public interest and a benefit to the citizens,
and therefore may grant in-kind services by waiving fees, including but not limited to, staff,
equipment, supplies, facilities, and security. Event organizers may submit a request to the City for
in-kind services. If in-kind services are requested, City Council approval is required, and a Special
Event application must be submitted to the Director of Parks and Recreation, or his designee, at
least sixty (60) days prior to the Special Event.
Sec. 25-245. Neighborhood Block Parties
The City believes that neighborhood block parties are in the public interest and a benefit to the
citizens. Persons organizing a neighborhood block party are required to obtain a Special Event
Permit from the City and are subject to the filing periods set forth in Sec. 25-216.
Neighborhood block parties will be exempt from Special Event application fees described in this
Article, but may be subject to other City fees (e.g. tent permit fees). A process for notifications to
affected properties adjacent to the Special Event must be submitted in accordance with Sec. 25-
217. Neighborhood block parties are exempt from the insurance requirements set forth in Sec. 25-
248.
Sec. 25-246. First Amendment Activity
Persons organizing a First Amendment Activity are required to obtain a Special Event Permit
from the City and must file an application at least seven (7) days before the intended event date.
First Amendment Activities will be exempt from Special Event application fees and costs
associated with police the event. First Amendment Activities are exempt from the insurance
requirements set forth in Sec. 25-248.
DIVISION 4. PARADE
Sec. 25-247. Public Conduct
(a) Interference. It shall be unlawful for any person to unreasonably hamper, obstruct,
impede, or interfere with any parade, parade assembly, or with any person, vehicle, or
animal participating or used in a parade.
(b) Driving through parades. It shall be unlawful for any driver of a vehicle, bus, or bicycle
to drive between the vehicles or persons comprising a parade when such vehicles or
persons are in motion and are conspicuously designated as a parade.
(c) Parking on a parade route. The Chief of Police shall have authority, when reasonably
necessary, to prohibit or restrict the parking of vehicles along a highway or part thereof
constituting a part of the route of a parade. Signs shall be posted to such effect, and it
shall be unlawful for any person to park or leave unattended any vehicle in violation
thereof. No person shall be liable for parking on a street unposted in violation of this
article.
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DIVISION 5. INSURANCE, INDEMNIFICATION, AND COSTS
Sec. 25-248. Insurance
(a) The applicant for a Special Event Permit shall furnish the City with a certificate of insurance
complying with minimum standards sufficient to protect event attendees, the general public,
and City-owned property as outlined below, including property damage arising from the
Special Event that impacts or occurs on City property.
(b) The City shall have the right to lower or increase the amount based upon the type of event,
equipment, machinery, location, number of people involved, provision of alcohol, and other
pertinent factors or risks associated with the Special Event.
(c) Commercial General Liability Insurance: Must be provided with combined single limits of
liability for bodily injury and property damage of not less than $1,000,000 for each
occurrence. Depending on the scope and activities contemplated under the Special Event
Permit (i.e. estimated attendance, amusement rides, live animals, aerobatics, etc.) Risk
Management may require higher limits of liability insurance. For event banners on street light
poles, commercial general liability insurance must be provided with combined single limits
of liability for bodily injury and property damage of not less than $500,000 for each
occurrence.
(d) Liquor Liability Insurance: If any alcoholic beverage is sold, served, or otherwise made
available to the public at the Special Event, Liquor Liability (Dramshop) Insurance or Host
Liquor Liability coverage must be provided by the alcoholic beverage license holder in an
amount of not less than $1,000,000 per occurrence. Depending on the scope and activities
contemplated under the Special Event Permit (i.e. estimated attendance, amusement rides, live
animals, aerobatics, etc.) Risk Management may require higher limits of liquor liability
insurance.
(e) Other Insurance: If a Special Event includes vehicles, fireworks, aircraft, or other equipment,
devices, or activities that are excluded from coverage in the general liability insurance policy,
or create a special or increased risk, then separate additional liability insurance coverage for
the applicable exclusion(s) must be provided with the same combined single limits of liability
for bodily injury and property damage as outlined in the paragraphs above.
(f) Additional Insured: The insurance required in (c), (d) and (e) above shall name the City as an
Additional Insured.
Sec. 25-249. Indemnification
THE PERMITEE AND/OR EVENT SPONSOR(S) SHALL DEFEND, INDEMNIFY,
PROTECT, AND HOLD HARMLESS THE CITY, ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SUCCESSORS, CONTRACTORS, SUBCONTRACTORS,
ASSIGNS, SPONSORS, AND VOLUNTEERS FROM AND AGAINST ANY AND ALL
LIENS, CLAIMS, DEMANDS, LOSS, LIABILITY, COST (INCLUDING BUT NOT LIMITED
{ƦĻĭźğƌ 9ǝĻƓƷ hƩķźƓğƓĭĻ 5ƩğŅƷ C tğŭĻ ЊЍ
DAMAGES BECAUSE OF INJURY TO PERSONS (INCLUDING DEATH) AND INJURY OR
DAMAGE TO OR LOSS OF ANY PROPERTY OR IMPROVEMENTS ARISING FROM OR
CAUSED, IN WHOLE OR IN PART, BY THE ACTS AND/OR OMISSIONS OF THE
PERMITEE, EVENT SPONSOR(S), THEIR OFFICERS, DIRECTORS, AGENTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, VOLUNTEERS, AND
PARTICIPANTS IN THE SPECIAL EVENT.
Sec. 25-250. Fees/costs
(a) Fees, other than cost for policing the event, if any, as specified in this ordinance, shall be
established by City Council ordinance.
(b) In the event the City determines, upon a review of the application, that a Special Event may
require the special attention and involvement of City personnel or facilities, the City shall so
notify the applicant. In such event, prior to the issuance of a Special Event Permit, the City
shall determine the anticipated additional cost to be incurred by the City because of the Special
Event. Prior to the issuance of a Special Event Permit, the applicant shall agree in writing to
pay the anticipated additional costs to the City incurred as a result of the Special Event within
thirty (30) days of the date upon which the City invoices the applicant for the anticipated costs.
Sec. 25-251. What constitutes penalty for violations of ordinance
(a) A person commits an offense if he:
(1) Knowingly commences or holds a Special Event without a Special Event Permit or with
a Special Event Permit that has expired or been revoked; or
(2) Knowingly violates any terms or provisions of this Article.
(b) It is hereby determined that this Article governs fire safety and public health/safety and,
therefore, any person, firm, corporation, or organization violating or failing to comply with
any of the provisions of this Article by a court of competent jurisdiction shall be fined a sum
of Five Hundred Dollars ($500).
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EventListExhibit3
FY1617TypeofEventEst.AttendanceCityParkCityCouncilApproval
October2016
AirrostiFunRunFunrun/walk300SouthLakesN
ArturoPiedraFundaciouSanRafaelFestival100150FredMooreParkN
CalhounCougarDayCarnivalstreetclosureN
DayoftheDead Festival 5,000+Y
DentonHighSchoolCarnivalCarnivalstreetclosureN
FryStreetOctoberfestFestivalandfunrun600N
IndustrialStreetPopFestival Festival900N
RunThroughtheNationsFunrun/walk100SouthLakesParkN
TexasCowboysAgainstCancerFundraiser600N
TheDarkPathHauntHauntedHouse3,500N
ThrowbacktoberDomesticViolenceAwareness100150FredMooreParkN
WalkingStrongRoadtoRecoveryFunrun/walk200N
November2016
BeaujolaisandMoreFundraiser400N
BestoftheBestTriathlonTriathlon250DentonNATN
CometoJesusChurchFestival200NorthLakesParkN
DentonClassicalAcademyGlowRunFunRun/Walk240SouthLakesParkN
FestibowlFundraiser50NorthLakesParkN
TurkeyTrot FunRun/Walk2,500Y
December2016
HolidayLightingFestival Festival 5,000 Y
March2017
CalhounColorRunFunRun500SouthLakesParkN
GuyerBand5K&1mileFunRun300N
GreatAmericanCleanUpFestival8001,200N
MeanGreenTriathlonTriathlon200N
TexasStorytellingFestival Festival800Y
TexasTraditionRodeoRodeo600DiamondTN
VietnamVeteran'sCarShowCarshow500N
April2017
Arts&JazzFestival Festival 225,000 Y
Ashes420FestivalFestival2,000+Y
Bikes,Food,&ShoppingfortheChildrenFestival100N
CalvaryChallengeFunRun150N
CrossTimbersCommunityChurchBlockPartySouthLakesParkN
DentonCommunityMarketCommunityMarket8002,000/weekN
DentonVintageMarketDays CommunityMarket 8,000 N
Hallie'sHeroesFamilyFunRunFunRun400N
LuckyLou'sTacoFestFestival200SouthLakesParkN
MustacheDashFunRun300N
PurposeChurchEasterServiceChurchservice5075NorthLakesParkN
RedbudFestival Festival 4,0005,000 Y
RideATAXIADallasBikeRally750N
SouthmontEggstravaganzaEggHunt100N
TheVillageChurchService&PicnicChurchservice8001,000SouthLakesParkY
ThinLineFilmFestival Festival 10,00015,000 NorthLakesParkY
UNTAdventuresinAutism5KFunRun200N
Page1
EventListExhibit3
FY1617TypeofEventEst.AttendanceCityParkCityCouncilApproval
May2017
ChurchPicnicFestival125FredMooreParkandALHN
CupcakeRunFunRun250500SouthLakesParkN
CycloDia:Bike/WalkOpenStreetsBikeRally250N
DentonCincodeMayo Festival 6,000 QuakertownParkY
DentonMudbugBoilFestival1,000N
DobermanPinscherAptitudeEvaluationDogtesting25N
FryStreetFreedomFestFestival500Y
Let'sDoDentonLifeFunRun150500NorthLakesParkN
MayDayFestivalFestival200400N
MSBikeSam'sClubRoundUpRideBikeRally1,500N
PhiGammaAnnualCookoutFestival150McKennaParkN
TonyPerezMemorial5KFunRun100SouthLakesParkN
June2017
DentonHighSchoolWarriorRunFunRunN
JuneteenthCelebrationFestival 3,0008,000 FredMooreParkandALHY
RiverOaksHOABlockPartyN
ShortsFamilyReunionFamilyGathering500SouthLakesParkN
SummerKidsFestFestival75SouthLakesParkN
WildfireHalfMarathonFunRun650SouthLakesParkN
July2017
DoubleWahalaFestival400N
FaithPresbyterianHospiceCarShowCarShow500+N
FLIPFoxtrotLifeImprovementProgramFestival150200N
August2017
NorthTexasStateFairFair&Rodeo180,000N
OldCollegeTriFunRunTriathlon350DentonNATN
PeoplesDayCommunityEvent300N
SouthmontBacktoSchoolBashFestival100SouthLakesParkN
September2017
Alzheimer'sWalkFunRunWalkN
AmericanHeartWalkFunRunWalk1,500N
Arts&AutosExtravaganza Festival 8,0009,000 N
BackyardBashFestival100SouthLakesParkN
BluesFestival Festival 10,000 Y
DentonHighHomecomingCarnivalCarnivalStreetclosureN
FryStOktoberfestFestival650N
JamesWoodAutoShowCarShow200N
LiveHealthyHealthFair300N
MovementCosechaDentonMarch4060N
PartyintheParkFestivalChurch300600FredMooreParkN
Potter'sHouseChurchoutreach70100FredMooreParkN
RaceforHopeN
Over5,000Attendees Downtown12
HeldintheDowntownArea>500010
Total13
Council10
Percentage77%
Page2
EventListExhibit3
FY1718 TypeofEventEst.AttendanceCityParkCityCouncilApproval
October2017
CalhounCougarDayCarnivalN
CancerWalkFunrun/walk50SouthLakesParkN
ChathaPujaChurchservices100N
DayoftheDeadFestival Festival 5,000+Y
FunacionSanRafaelFestivalchurch150FredMooreParkN
NationalStrokeComebackTrailFunrun/walk100QuakertownParkN
NFWalkandLittleHero'sFunrun/walk150SouthLakesParkN
Walk4WaterFunrun/walk200SouthLakesParkY
andHomelessVeterensStandDownY
VeteransResourceFair
WaltzAcrossTexasFestival50N
November2017
BeaujolaisandMoreFundraiser400N
ChurchintheParkChurchawareness200N
SigmaChiFightNightFundraiser1,5002,000N
BacktheBlueFundraiserY
TransgenderDayofRemembrance Awarenessevent150N
TurkeyTrot Funrun/walk2,5003,000Y
December2017
DentonCommunityHolidayMarketFarmer'sMarket2,000N
HolidayLighting Festival 5,000 Y
January2018
Women'sMarch MarchN
March2018
CCACorinthClassicalRunFunrun/walk250300SouthLakesParkN
GreatAmericanCleanUpFestival8001,200N
KellerWilliamsEggHuntEggHunt40SouthLakesParkN
MeanGreenTriathlonTriathlon200DentonNATN
OakStreetAnniversary Festival300N
RideATAXIADallasBikeRally750N
SouthmontEggHuntEggHunt200SouthLakesParkN
TexasStorytellingFest Festival800Y
TillerEasterEggHuntcanceledN
VietnamVetsCarShowCarShow5001,000N
April2018
Arts&JazzFestival Festival 225,000 QuakertownParkY
Ashes40FestFestival1,500N
BoltforGuyerBandFunrun/walk150SouthLakesParkN
CalvaryChallengeFunrun/walk200SouthLakesParkN
CASAWalk MarchN
ChickFilAfunrunFunrun/walk500SouthLakesParkN
EasterFestivalEggHunt300FredMooreParkN
FolkFestFestivalY
GuyerBand5KFunrun/walk150SouthLakesParkN
Let'sDoDentonWomantoWomanFunrun/walk150500NorthLakesParkN
LuckyLou'sTacoFestFestival1,200N
MemorialMusicFestivalFestival200N
MustacheDashFunrun/walk200NorthLakesParkN
NewLifeEasterFestivalEggHunt300FredMooreParkN
RedbudFestival Festival 4,0005,000 QuakertownParkN
TakeBacktheNight MarchN
TheVillageChurchChurchservices&picnic1,200NorthLakesParkY
ThinLineFilmFestival Festival 10,00015,000 Y
May2018
BikeMSSam'sClubRoundUpRideBikeRally1,500N
CincodeMayo Festival 5,0006,000 QuakertownParkY
DentonMudbugBoilFestivalfundraiser500Y
yFishingtournament100SouthLakesParkN
Sportsmen'sAllianceFishingDerb
WaterWorksTri&YouthSplash&DashTriathlon400DentonNATN
TrotfortheTroopsFunWalk/Run150NorthLakesParkN
FreedomTown2.0ReloadedY
Over5,000Attendees>50006
HeldintheDowntownArea Downtown13
Total13
Council7
Percentage54%
Page3
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-777,Version:1
AGENDA CAPTION
DeliberationsRegardingCertainPublicPowerUtilities:CompetitiveMatters-UnderTexasGovernmentCode
Section 551.086; Consultation with Attorneys - Under Texas Government Code Section 551.071.
DiscussanddeliberatestrategiesandopportunitiesfortheCitytoacquiresolarenergyandenterinto
agreementsregardingthesameincludingaPowerPurchaseAgreementwithBluebellSolarII,LLC.;receivea
presentationfromstaffregardingpublicpowercompetitiveandfinancialmatterspertainingtothepurchaseof
solarenergy;consultationwiththeCity’sattorneysregardinglegalissuesassociatedwiththeagreement
describedabovewherediscussionoftheselegalmattersinanopenmeetingwouldconflictwiththedutyofthe
City’sattorneystotheCityofDentonandtheDentonCityCouncilundertheTexasDisciplinaryRulesof
Professional Conduct of the State Bar of Texas.
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-812,Version:1
AGENDA CAPTION
Consultation with Attorneys - Under Texas Government Code, Section 551.071.
Receiveinformationfrom,consultwith,deliberate,andprovidedirectiontotheCity’sattorneysregarding
moniespaidbytheCitytotheUniversityofTexasatArlington(“UTA”)relatedto(i)UTA’sSolidWaste
InstituteforSustainability;and(ii)UTA’sresearchrelatedtoand/orattheCity’sECO-W.E.R.C.S.Resource
RecoveryPark.ApublicdiscussionoftheselegalmatterswouldconflictwiththedutyoftheCity’sattorneys
totheCityofDentonandtheDentonCityCouncilundertheTexasDisciplinaryRulesofProfessionalConduct
oftheStateBarofTexas,orwouldjeopardizetheCity’slegalpositioninanyadministrativeproceedingor
potential litigation.
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-836,Version:1
AGENDA CAPTION
DeliberateregardingRealProperty-UnderTexasGovernmentCode551.072;ConsultationwithAttorneys-
Under Texas Government Code Section 551.071
Discuss,deliberate,receiveinformationfromstaff,andprovidestaffwithdirectionregardingthepotential
purchaseorcondemnationofvariousfeesimpletracts,utilityeasements,drainageeasements,andtemporary
constructioneasementsintheCityofDenton,DentonCounty,TexasfortheBonnieBraeStreetWideningand
Improvementsproject,generallylocatedalongBonnieBraeStreet,northofInterstateHighway35East,and
southofScriptureStreet.ConsultationwiththeCity’sattorneysregardinglegalissuesassociatedwiththe
potentialacquisitionofrealpropertyinterestsinthetractsdescribedabovewhereapublicdiscussionofthese
legalmatterswouldconflictwiththedutyoftheCity’sattorneystotheCityofDentonandtheDentonCity
CouncilundertheTexasDisciplinaryRulesofProfessionalConductoftheStateBarofTexas,orwould
jeopardize the City’s legal position in any administrative proceeding or potential litigation.
City of DentonPage 1 of 1Printed on 5/4/2018
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-837,Version:1
AGENDA CAPTION
DeliberateregardingRealProperty-UnderTexasGovernmentCode551.072;ConsultationwithAttorneys-
Under Texas Government Code Section 551.071
Discuss,deliberate,receiveinformationfromstaff,andprovidestaffwithdirectionregardingthepotential
acquisitionofoneormorerealestateinterestsinatractgenerallylocatedintheG.WalkerSurvey,AbstractNo.
1330a,EastofSouthMayhillRoadandNorthofEdwardsRoad,intheCityofDenton,DentonCounty,Texas
whichisrelatedtoboththeMayhillSt.WideningProjectandthepromotionoftreepreservationinaccordance
withtheDentonDevelopmentCodeandDentonPlan.ConsultationwiththeCity’sattorneysregardinglegal
issuesassociatedwiththepotentialacquisitionofthetractdescribedabovewhereapublicdiscussionofthese
legalmatterswouldconflictwiththedutyoftheCity’sattorneystotheCityofDentonandtheDentonCity
CouncilundertheTexasDisciplinaryRulesofProfessionalConductoftheStateBarofTexas,orwould
jeopardize the City’s legal position in any administrative proceeding or potential litigation.
City of DentonPage 1 of 1Printed on 5/4/2018
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-284,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityCounciloftheCityofDenton,aTexashome-rulemunicipal
corporation,nuncprotunc,correctinganinadvertentmistakeinOrdinanceNo.2016-172,relatingtothedollar
amountreflectedinbackupprovidedforRFPNumber5641,awardedtoGenuinePartsCompany,d.b.a.NAPA
Auto Parts; and providing for an effective date.
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City of Denton
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Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May 8,2018
SUBJECT
Consider adoption of an ordinance of the City Council of the City of Denton, a Texashome-rule municipal
corporation, nunc pro tunc,correctinganinadvertent mistake in Ordinance No. 2016-172,relating to the
dollar amount reflected in back up provided for RFP Number 5641,awarded to Genuine Parts Company,
d.b.a. NAPA Auto Parts;andproviding for an effective date.
FILE INFORMATION
On June 21, 2016Council awarded Request for Proposals (RFP) 5641to Genuine Parts Company, d.b.a.
NAPA Auto Partsin the amountof $3,000,000,for a three year not to exceed amount of $9,000,000 under
Ordinance 2016-172(Exhibit 2). Through an audit of the City’s contract administration processes
performed by Crawford and Associates, P.C., it wasdiscovered that a clerical mistake was made in the
dollar amounts reflected in the ordinance and that those dollar amounts did not accurately reflect the contract
that was approved. The contract, which contained the correct not-to-exceed amount, was included inthe
agendabackup documents provided to Council by staff(Exhibit 3). The Ordinanceshall instead reflect a
three-year not-to-exceed amount of $12,000,000.
Staff has implemented the use of checklists in the preparation of agenda items. The review includes the
verification of contract pricing on all materials presented including the AIS and Ordinance.
PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS)
City Council awarded the original contract on June 21, 2016 per Ordinance 2016-172.
RECOMMENDATION
Approval of an ordinance to reflect the correct award amountofGenuine Parts Company, d.b.a. NAPA
Auto Partsin the amount of $12,000,000.
PRINCIPAL PLACE OF BUSINESS
Genuine Parts Company, d.b.a.NAPA Auto Parts
Atlanta, GA
ESTIMATED SCHEDULE OF PROJECT
This contract is valid throughJune 21, 2019.
FISCAL INFORMATION
The purchase of parts will be purchased on an as needed basis fromFleet Service’s operating account
820100.7899.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road map that will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this
specific City Council agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Organizational Excellence
Related Goal:1.1 Manage financial resources in a responsible manner
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Ordinance 2016-172
Exhibit 3: Contract
Exhibit 4: Ordinance
Respectfully submitted:
Karen Smith, 349-8436
Purchasing Manager
For information concerning this acquisition,contact:Karen Smithat 940-349-8436
ORDINANCE NO._________________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, A TEXAS HOME-
RULE MUNICIPAL CORPORATION, NUNC PRO TUNC, CORRECTING AN
INADVERTENT MISTAKE IN ORDINANCE NO. 2016-172, RELATING TO THE DOLLAR
AMOUNT REFLECTED IN BACK UP PROVIDED FOR RFP NUMBER 5641, AWARDED
TO GENUINE PARTS COMPANY, D.B.A. NAPA AUTO PARTS; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, on or about June 21, 2016, the City Council awarded RFP No. 5641, to
Genuine Auto Parts/NAPA in the annual amount not to exceed $3,000,000, for a three year not to
exceed amount of $9,000,000 under Ordinance No. 2016-172 ; and
WHEREAS, the City recently discovered that a clerical mistake was made in the dollar
amounts reflected in the Ordinance and that those dollar amounts did not accurately reflect the
contracts that were approved or the backup materials provided to Council by staff attached to RFP
No. 5641, and shall be instead reflected as indicated on the corrected ordinance attached as Exhibit
A hereto and incorporated herein; and
WHEREAS, the correct award should be to Genuine Parts Company, D.B.A. NAPA Auto
Parts in the annual amount not to exceed $4,000,000, for a total three year not-to-exceed amount of
$12,000,000; and
WHEREAS, both City Staff and the awardees request that this inadvertent mistake be
corrected and that the corrected ordinance attached hereto replace the Ordinance and that all exhibits
remain the same; and
WHEREAS, the City Council has the inherent power to retroactively correct such mistakes
to reflect the correct and final amounts in the Ordinance and deems it to be in the best interest of the
citizens of the City of Denton to correct the inadvertent mistake; 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 Ordinance 2016-172 is hereby amended to the limited extent necessary to
correct an inadvertent clerical mistake in the dollar amounts reflected on the Ordinance by replacing
the Ordinance with the corrected ordinance attached as Exhibit A hereto, with all original exhibits
remaining the same, and the Mayor is hereby authorized to execute the corrected Ordinance in
Exhibit A.
SECTION 3. All other provisions of Ordinance No. 2016-172 not specifically amended
herein shall continue in force and effect; however, the provisions to this ordinance shall govern and
control over any conflicting provisions of Ordinance No. 2016-172, to the extent of any such
conflict.
SECTION 4.This Ordinance shall become effective immediately upon its passage and
approval.
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
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DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND GENUINE PARTS COMPANY
(D.B.A. NAPA AUTO PARTS)
(RFP # 5641)
THIS CONTRACTis made and entered into this date ______________________, by
and between Genuine Parts Company, d.b.a. NAPA Auto Parts, a corporation, whose address is
2999 Circle 75 Parkway, Atlanta, Georgia 30339, 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 document
RFP 5641 Fleet Vehicle and Equipment Integrated Parts Inventory Support 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
(b) Revised and Negotiated Scope of Work (
(c) Sample Profit and Loss Statement (Schedule 1)
(d) Standard Terms and Conditions C;
(e) Insurance Requirements D
(f) Lease Agreement ;
(g) Request for Proposal (RFP) (Fon File at the Office of the Purchasing
Agent);
(h) Form CIQ Conflict of Interest Questionnaire (Exhibit "G");
(i) Best and Final Proposal (Exhibit "H")
(j) Sample Reports (Exhibit I).
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions
of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence
first to the written agreement then to the contract documents in the order in which they are listed
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
CONTRACTOR
BY:_______________________________
AUTHORIZED SIGNATURE
Date:_______________________
Name:______________________
Title: _______________________
____________________________
PHONE NUMBER
____________________________
EMAIL ADDRESS
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY:
GEORGE C. CAMPBELL, CITY MANAGER
BY: __________________________________ Date:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: __________________________________
Contract # 5641 Service Agreement Page 2of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Contract #5641
Exhibit A
Special Terms and Conditions
Contract # 5641 Service Agreement Page 3of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Special Terms and Conditions
Total Contract Amount
The contract total for services shall not exceed an annual amount of $4,000,000 for a total not-to-
exceed amount of $12,000,000. Pricing shall be per Exhibit B attached.
Contract Terms
The contract term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one-year periods.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall be renewed each year, from the date of award by City Council, upon mutual written
agreement by both parties. The City shall notify the Contractor at least ninety (90) days prior to
the scheduled renewal date in accordance with the terms set forth hereinunder. 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.
Pricing
The pricing for all normally stocked, and locally available, items will be furnished FOB
Destination, Prepaid and Allowed, and the prices quoted for all non-stock items, non-locally
available items, special/custom and emergency orders will be furnished FOB Destination, Prepaid
and Added, which means that the Contractor initially pays the freight and then adds the freight
charges to its invoice to the City for reimbursement.
Firm Pricing Profile
The parties agree that C
products shall increase and decrease throughout the term of the Contract.
Price Adjustments
As stated above in the section entitled Firm Pricing Profile, prices on individual products shall
increase and decrease throughout the term of the Contract.
Cooperative Purchasing
This contract will be available for use by all governmental entities, providing there is no conflict
with any applicable statutes, rules, policies, or procedures. The governmental entities will have the
option to use the pricing as agreed to within the resulting contract.
Governmental entities will issue their internal purchase orders directly to the Contractor, however,
shall reference and cite the City of Denton contract number within the purchase order document.
After award, the Contractor agrees to collect, on behalf of the City, a service fee in the amount
of0.25% of the dollar amount of all issued purchase orders generated from any
governmental entities contracted, based on the use of this contract. The Contractor further agrees
to remit the service fee by check on a quarterly basis for the previous quarter spent through this
Contract # 5641 Service Agreement Page 4of 76
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
contract, to Julia Klinck, Contract Administration Supervisor, at 901B Texas Street, Denton,
th
Texas 76209, on or by the fifteenth (15) day of each month, following the end of the quarter.
The Contractor shall also provide quarterly sales reports from the contract awards and Purchase
Orders issued from the Contract, for the purpose of billing and collecting the service fee, and for
compiling required purchasing history. This report shall be sent to
th
purchasing@cityofdenton.comon or by the fifteenth (15) day of each month. The Contractor
further agrees that the City of Denton shall have the right, upon reasonable written notice, to
accuracy of service fees charged to the Contractor.
Intellectually Property Indemnification
This section only applies to software owned by the Contractor and made available to the City.
The contractor will indemnify, defend and hold harmless the City, and its authorized users,
against any action or claim brought against the City, or its authorized users that is based on a
claim that software infringes any patent rights, copyright rights or incorporated misappropriated
trade secrets. Contractor will pay any damages attributable to such claim that are awarded
against the City or its authorized users, in a judgment or settlement. If the City or its authorized
claim, in the sole opinion of the City, or its authorized users, the Contractor shall, at its sole
expense (1) procure for City or its authorized users, the right to continue using such software
under the terms of this Contract; or (2) replace or modify the software so that it is non-infringing.
Rights toData, Documents, and Computer Software (Governmental Entity Ownership)
Any research, reports studies, data, photographs, negatives or other documents, drawings or
materials prepared by Contractor in the performance of its obligations under this contract shall be
the exclusive property of the City and all such materials shall be delivered to the City by the
Contractor upon completion, termination, or cancellation of this contract. Contractor may, at its
own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly
allow, or cause to have such materials used for any purpose other than the performance of
however, that contractor shall be allowed to use non-confidential materials for writing samples in
pursuit of the work.
The ownership rights described herein shall include, but not be limited to, the right to copy,
publish, display, transfer, prepare derivative works, or otherwise use the works.For the
avoidance of any doubt, the parties agree that Contractor cannot assign or leave with the City its
proprietary TAMS (Total Automotive Management System) upon termination or expiration of
the Contract.
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Patent Rights
The Contractor agrees to provide an indemnity for intellectual property claims based on
intellectual property rights owned by Contractor but cannot provide a direct copyright, trademark
or patent indemnity for the products supplied pursuant to the contract, as contractor does not
manufacture the products. Contractor can agree to use reasonable commercial efforts to assist
the City in processing any infringement claim against the applicable manufacturer.
No Liquidated Damages
The parties agree that no liquidated damages of any kind will be assessed against Contractor under
this Contract for any reason.
Warranties
All products supplied pursuant to the contract are subject to the terms of written warranties
provided by the manufacturer of each product, and contractor shall use reasonable commercial
efforts toassist the City in processing all warranty claims that the City may have againsta
manufacturer. The manufacturers warranty will be the sole andexclusive remedy of the City
in connection with any claims concerning the products supplied to the City hereunder. ALL
OTHER WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING ANY
IMPLIED WARRANTIESOF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXCLUDED. Copies of the manufactu warranties are available
to the City upon request.
However, the Contractor shall pass through all available warranty benefits from the
applicable manufacturer to the City.In the event that any product does not conformto the
manufacturers warranty, the City may return such productto Contractor and Contractor will
process the Citys warranty claim with the manufacturer ofthe defective product. After the
manufacturer has accepted the claim from Contractor, Contractor,as the Citys sole and
exclusive remedy and the contractors soleliability, shall either, atitsoption: (i) replace the
product with a conforming product or (ii) issue a credit or refundfor the price of the product.
Shipping, Delivery, and Packaging
Identification of Shipments:
In addition to the complete destination address, each delivery must be clearlymarked with
the purchaseorder number. Each shipment must be accompanied by a packing slip.
Packaging and Labeling:
Contractor will use commercially reasonable efforts to ensure that allitems shipped will be
properly labeled, with weather resistant labeling, showing the brand name, package quantity, lot
number (ifapplicable) and any other necessary identifying information.
Special Delivery Requirements:
City Department representatives may have specific, internal delivery rules and policies. These
will be provided oneach purchase order issued. The contractor(s) will be required to adhere
tothose requirements.
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Hours of Delivery:
Stock orders for inventory replenishment shall be delivered during the overnight shift
hours of 10:30 p.m. to 12:00 a.m. (Central) unless prior approval forafter-hours delivery
has been obtainedfrom the City. In the event of any approvalby the City for after-hours
delivery,Contractor may not invoice any additional charges for that delivery. Contractor is
encouraged to obtain Citys hours of operation at time of order.
Daily parts deliveries shall be accepted by City staff in between the hours of 6:30 a.m. and 5:00
p.m. (Central).
Delivery Schedule:
Respondents shall furnish, in the space indicated on the price sheet, a delivery schedule for
each line item as to time required for deliveryafter receipt of order (ARO) under normal
conditions. Delivery Days means calendar days, unless otherwise specified.Failure tostate
delivery time may disqualify Respondent. The City of Denton, at its sole option, may choose to
negotiatedelivery times.
Delivery Delays:
If delay is foreseen, Contractor shall give written notice to the City and must keep City
advised at alltimes of the status of order. Default in promised delivery (without accepted
reasons) or failure to meet specifications authorizes the City to purchase goods and services
of this solicitation elsewhere. The parties agree that Contractor will use reasonable commercial
efforts to meet required delivery times, but conditions out of C
such as adverse traffic or weather conditions, may delay deliveries and contractor will not be
liable in any manner for such delayed deliveries.
Compliant Products:
Providing products or materials which do not meet allspecification requirements does not
constitute delivery. Delivery does not occur until the contractor delivers products or
materials in full compliance with the specifications to Citys F.O.B. destination, unless
delivery isspecificallyaccepted, in whole or in part, by the Customer. City reserves the right to
require new delivery or arefundinthe event that materialsor productsnot meeting specifications
are discoveredafter payment has been made.
Restocking Fee:
The City may requestthat a contractor accept return of merchandise already delivered or that a
contractor cancel an order prior to delivery. If the returnisrequiredthrough nofault of the
contractor, the contractor may request a reasonable restockingcharge. The Customer may pay a
restockingcharge if the City determines that the chargeis justifiable.As a guideline,such charges
shall not exceed 10%. There shall be no fees charged for cancellation of an order prior to
shipment by the Contractor.
Safety and Environmental Hazards
The City does not warrant or guarantee against the possibility that safety or environmental
hazards or potential hazards (includ
facilities. Notwithstanding the foregoing, the City shall, at all times during the term of the
prevent any
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damaglocated in
the on-site store(s)) the roof, exterior walls, foundation, and structural portions of the on-site
store(s) and all portions of the electrical and plumbing systems lying outside of the on-site
store(s) but serving the on-site store(s).
All contractors to the City are required to ensure absolute safety standards are applied and
enforced. City will not be liable for injuries to Contractor employees to the extent such injuries are
caused by the negligent acts or omissions or intentional misconduct of Contractor or its employees.
Likewise, Contractor will not be liable for injuries to City employees to the extent such injuries
are caused by the negligent acts or omissions or intentional misconduct of City or its employees.
Known hazards shall immediately be reported and all safety precautions shall be taken to prevent
potential safety issues from occurring.
Contractor Standards of Performance
Monthly Time Standards - Contractors shall fully understand that the City relies on the product or
service of the solicitation to provide vital municipal services, and the availability and reliability of
the equipment is of the essence. With this in mind, the Contractor shall meet the following
performance standards at all times. Labor disputes, strikes, and other events, except those beyond
the Contractor's control such as acts of God, shall not relieve the Contractor from meeting these
standards. For service category, the Contractor must ensure the given level of service is achieved,
within the designated number of working hours.
Contractor shall deliver goods or services within specified delivery times for 95% of all orders.
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Contract #5641
Exhibit B
Revised and Negotiated Scope of Work
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3#/0% /& 7/2+
Services to be rendered shall include, but not limited to, the following particular tasks:
A.0!243 ).6%.4/29 2%15)2%-%.43
1. Parts and Supplies
The contractor shall provide automotive and equipment parts and supplies required to
service and repair the City's diverse fleet of vehicles and equipment. The Contractor shall
only charge the City for parts actually requested by authorized City personnel. The City
further requires that in every application, where reasonable and acceptable, the offeror
shall provide rebuilt, refurbished, recycled or refined products that meet or exceed
Original Equipment Manufacturer (OEM), Society of Automotive Engineers (SAE),
Underwriters Laboratories (UL), Military Standard Specification (Mil-spec), American
National Standards Institute (ANSI) or other industry quality standards. All hydraulic
equipment, components and parts must meet Joint Industry Council (JIC) and SAE
specifications.
eet or exceed OEM, SAE, UL,
Mil-spec, ANSI or other industry quality standards whenever possible. The City strongly
encourages the usage of lower cost contractor/non-Original Equipment Manufacturer
(OEM) brand parts; therefore, the Contractor shall aim to supply 50 percent of the parts
in the Quality of Parts section. City prefers Contractor branded parts, when available, to
achieve the lowest possible landed cost fo
buy back for the non-Contractor branded parts on hand upon the contract termination,
expiration or non-renewal.
2. On-Site Parts Inventory
The contractor shall provide both Target and Non-target on-site parts inventories
adequate to meet the parts availability performance standards mutually agreed upon
by the City and the Contractor (See minimum recommended parts list).
In the event, the Contractor cannot supply a part in a timely manner or at a reasonable
cost, the Contractor shall agree to allow the City to buy parts from third party vendors.
City reserves the right to obtain required parts from other sources or to demand
expedited delivery services if the Contractor indicates that specified service standards
cannot be complied with.
3. Price Comparison
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City of Denton has the right to conduct quarterly parts price comparison to ensure the City
is obtaining the best value. Contractor and the City shall develop mutually agreeable
random comparison criteria for a quarterly report comparing prices paid for parts issued
to the City with those paid by other Contracted NAPA IBS entities in this region. Contractor
shall provide the City with quarterly reports for all parts issued during the preceding
quarter, detailing actual prices paid to their suppliers and prices billed to the City for
statement validation and price comparison purposes. The Quarterly Top 100 Parts
Report, which a sample is attached hereto and incorporated herein by reference as
The Contractor shall continually work to lower the cost of parts acquisition. All
rebates and discounts shall be used to lower the acquisition cost to the City and will be
applied to the monthly Profit and Loss statement.
4. Multiple Quotes Requirements
The Contractor shall obtain three (3) price quotes for all non-Contractor brand parts
exceeding $3,000. The lowest quoted part, meeting specifications, shall be purchased
d-
approval signatures to all invoices containing parts covered under the requirements of
this section
5. Tax Exemption for Parts and Supplies
In accordance to Section 151.309 of the Texas Tax Code, the City is exempt from being
charged for all taxable items sold, leased, or rented to, or stored, used, or consumed by
the City. All parts and supplies purchased on the behalf of the City shall be purchased
under the tax exemption status. The Contractor shall not be authorized to purchase
goods or services, through the tax exempt status, that will not be re-sold to or utilized by
the City.
6. Quality of Parts
Contractor will use commercially reasonable efforts to ensure that the parts supplied
by Contractor meet or exceed the quality of the parts furnished originally for the
equipment (OEM or equivalent). If the original manufacturer updates the quality of the
parts for current production, the Contractor will use commercially reasonable efforts to
ensure that parts purchased after that change shall meet or exceed the updated quality
specification. If more than one (1) grade of product is available that meets the
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requirements of this section, the City may designate which grade shall be made
available for use. The City will accept only quality "first" lines from nationally recognized
vendors and not "second" lines of substandard quality. The City may at any time refuse
any particular product, and require a specific substitute to be used. Rebuilt or
remanufactured parts must conform to the manufacturer's recommended
reconditioning tolerances.
a. Quality Assurance Program
The Contractor shall implement a Quality Assurance Program for the management of
the parts supply function. The program shall include provisions for meeting specified
performance standards, for providing high quality parts, and for providing a high level
of customer service. A mandatory component of the Quality Assurance Program shall
be periodic customer satisfaction surveying. At a minimum, the Contractor shall
conduct an annual survey of maintenance, administrative and operating department
personnel. The Contractor's Quality Assurance Program shall also define a role for the
City in maintaining high quality service. The Contractor's proposed Quality Assurance
Program must be described in detail, as part of its proposal. The Quality Assurance
Program written guidelines and procedures shall be submitted to the City for review
and approval. Additionally, the Contractor shall provide a summary of the surveys to
the City for review.
7. Material Safety Data Sheets
The City maintains a cataloging system for all chemicals, chemical compounds, and
chemical mixtures. The Contractor shall provide a Material Safety Data Sheet (MSDS)
for all chemicals and parts containing any potential hazardous material. The MSDS
documents shall be kept up-to-date and available to City staff at all times.
8. Annual Inventory Turns
The contractor shall maintain a baseline target of 4.0 inventory turns annually for all
inventory items. Annual inventory turns is defined as the annual cost of goods sold
divided by the average annual inventory value. The City, and the Contractor shall
reserve the right to request the removal of inventory items that are turning less than 4
times per year. City staff shall evaluate the request of the contractor, and the stock
levels, to determine whether to maintain these items in inventory.
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B.$%3)'.!4)/. /& 0!243
1. Required Parts Preventative Maintenance and Critical Needs (100%
stocking rate)
Required parts are identified below. Required Parts are subject to the detailed cost
proposal submittal requirements and parts availability time standards of this solicitation
for Required Parts.
REQUIRED PART CATEGORIES:
Filters: Oil, Fuel, Transmission, Coolant, Hydraulic, and Air
Wiper Blades and Wiper Arms
Light bulbs, Lights, and Lenses
Belts and Hoses (non-hydraulic) (Gates or approved equal)
Hydraulic hoses and fittings (Gates or approved equal)
Brake Parts: Pads, Shoes, Drums, Rotors, and Hardware Kits
Batteries: Automotive, Truck, Construction, Lawn Equipment
Alternators
Electrical Switches
Air Conditioning Parts and Refrigerant
Bearing and Seal Parts
Sanitation Vehicle Parts
Fire Apparatus Parts
The City and the Contractor shall, in conjunction, conduct an annual review of all parts
designated as required parts and identify an updated list of specific required parts
within these categories. The current required parts are identified on the first worksheet
required parts. The Contractor shall maintain 100 percent stocking compliance with
the parts identified in the pricing sheet.
a. Preventative Maintenance Parts
Services utilize a comprehensive preventative maintenance schedule. The contractor
shall be responsible for ensuring all parts designated for the preventative maintenance
program are available when the parts are scheduled to be purchased and utilized. The
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City expects 100 percent fill rate for these parts. On the last day of each month, Fleet
Services staff will publish and provide the contractor the preventative maintenance
schedule for all City vehicles and equipment that are assigned to the preventative
maintenance program. A list of the parts designated for the preventative maintenance
program is provided in Exhibit 4 of this RFP.
b. Critical/Emergency Purpose Parts
in order to quickly bring essential fleet vehicles back into service, ensuring the health
ensuring all parts designated for critical or emergency purposes are available at
the on-site store at all times. The City expects 100 percent fill rate for these parts.
A list of critical or emergency purpose parts is provided in Exhibit 5 of this RFP. The
of these part numbers will
need to be cross referenced.
2. Non-Required Parts
Any part not encompassed by the definition of Required Parts described in this
solicitation is designated as a Non-Required Part and is subject to the proposal
submittal requirements and parts availability time standards of this solicitation for Non-
Required Parts. The City and the Contractor shall identify a list of specific non-required
parts within these categories on an annual basis. These non-required parts shall be
filled on a 95 percent fill rate basis at all times. The parts shall be filled within 48 hours
to achieve the 95 percent fill rate requirement.
3. Non-Stocked Parts
The contractor shall be responsible for researching and locating non-stocked parts
which may be required in the repair or maintenance of a vehicle. The City reserves the
right to audit and verify cost reasonableness on these parts. The Contractor shall
submit the actual quoted pricing documentation to the City staff for review, and
approval. Contractor shall be responsible for all restock fees except for when the City
orders a part and then decides the part is not necessary.
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1. On-site Personnel
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The contractor shall provide a maximum number of three (3) full-time on-site personnel
required to meet the parts availability performance standards mutually agreed upon by
the City and the Contractor. All of the assigned full-time personnel shall be ASE
Certified Parts Specialists. Counter personnel are responsible for researching to insure
the proper part is placed on order. Contractor will be responsible for costs incurred
when a wrong part is received. One of the three (3) full-time on-site personnel shall
be a manager who has vast parts room experience. One (1) part-time driver, working
off site locations. The driver shall maintain a good driving record for the duration of the
contract.
Maximum Maximum
PositionHours per Annual
WeekHours
Certified ASE Parts Room Manager 40 2,080
Certified ASE Parts Counter Person 40 2,080
Certified ASE Parts Counter Person 40 2,080
Parts Delivery Driver Up to 30 Up to 1,560
2. Personal Characteristics
Provide strong leadership for the operation. Possess personal drive, self-motivation
and take initiative to accomplish all offeror's and City's goals. Possess a willingness
and ability to learn, analytical problem solving skills, high character, and always deals
fairly with both employees and customers. Offeror personnel shall obtain within nine
(9) months of contract initiation, or retain current Automotive Service Excellence (ASE)
functions of supplying parts and to perform reasonable activities as requested by the
City.
3. Contractor's On-Site Manager
The Contractor's on-site Manager and other key personnel shall have proven technical
and managerial experience in the field of fleet maintenance and parts procurement and
be approved by the City. It is further expected that any person in a supervisory position
shall be 'ASE' Parts Specialist P1 or P2 certified, or attain such designation within nine
(9) months of contract initiation. The Contractor must make available its nominee for
on-site Manager during any negotiations with the City, should the Contractor be invited
for an interview. The Contractor's on-site Manager shall not be changed without prior
approval of the City. The City must approve the individual who replaces the current on-
site Manager. The Contractor's proposal to change its on-site Manager must include
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an implementation plan. All Contractor personnel must conform to City conduct
standards for the term of the contract. All Contractor personnel shall maintain and
express excellent standards for fast, efficient, friendly, and effective customer service.
4. Selection of Personnel
The Contractor shall select personnel with outstanding customer service skills to
perform the services outlined in this proposal. The Contractor shall provide evidence
of certificates or any other special training of personnel responsible for performing
services outlined in this proposal. All contractor personnel shall obtain at least one (1)
ASE Parts P1 or P2 Certification within nine (9) months from contract award.
5. Service Delivery
The latest upgrade to the City's FASTER Fleet Management software provides the
capability for the technician to order parts "on-line" to the parts room. It is the City's
intent to utilize this capability and have the Contractor deliver parts to the technician's
bay once the order is assembled within ten (10) minutes. This concept will initially begin
with the contractor building Preventative Maintenance kits for equipment in the City's
fleet.
6. Counter and Emergency Support Services
The Contractor shall provide on-site counter service to meet the parts availability
standards defined during negotiation of any contract resulting from this solicitation.
Counter service shall be provided at the Ci
normal hours of operation and will consist of no less than two (2) counter service
personnel during the hours of 7:00 a.m. to 5:00 p.m., and no less than one (1) counter
service personnel during the hours of 5:00 p.m. to 10:00 p.m., Tuesday through Friday.
Fleet Services maintenance facility hours of operation are Tuesday through Friday,
7:00 a.m. to 10:30 p.m. and Monday 7:00 a.m. to 3:30 p.m. Fleet Services is closed on
weekends and City holidays except for emergency situations. The City's holiday
schedule is provided in Attachment A. The normal hours of operation may change due
to the operational needs of Fleet Services and other City Departments.
The contractor shall provide overtime and emergency service support outside of the
normal working hours designated in this solicitation. The overtime expense (calculated at
time and one half) will be charged on a cost basis to the City. The City will notify the
Contractor when a requirement exists and the nature and anticipated duration of the
response needed from the Contractor. The Contractor shall use its best efforts to be on-
site to provide service with an appropriate complement of personnel within 30 minutes
(.5) hour of notification that such services are required. Contractor coverage for
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Emergency Services shall be on a 24-hour basis until the emergency has cleared or as
The Contactor shall provide an Emergency Personnel Contact List including a phone
number, preferably mobile phone number, where each person can be reached outside of
normal working hours. The City prefers a main contact person, a backup person, and an
7. Delivery Vehicle
The Contracto
part-time delivery driver to pick up and deliver parts ordered and purchased by
the City. The contractor shall provide the following items for the vehicle: fuel,
insurance, parts, and maintenance of the vehicle performed off site. Delivery
Vehicle expenses, including but not limited to depreciation/lease expense, fuel,
parts, and maintenance of the vehicle, to be performed off site, shall be included
as a pass-through expense with no additional markup in the monthly operational
expense billing.
8. Tire Repair and Replacement Support Services
The City utilizes, through a separate contract, a third party tire service provider for
installation of new tires and to repair used tires as needed. The tires shall be purchased
by the City through a separate tire inventory contract.
The Contractor under this contract shall be responsible for scheduling all tire repair and
ovider. The
Contractor shall pay for the scheduled work after the work is satisfactorily performed. The
City shall be billed for these services thereafter by the Contractor (Item 769 of Exhibit 1.
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1. Inventory Management
The City shall reserve the right to obtain certain parts and supplies considered to be
critical to service during emergency situations, or for which the City determines it to be
in its best interest to retain purchasing control. The City will maintain its own contracts
for the supply of fuel and certain operating department supplies to be issued through
The City may designate certain Contractor procured items as mandatory stocked items
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and will require the Contractor to maintain a mutually acceptable quantity in its
inventory at all times, regardless of annual part issued. Parts to be sold to the City for
preventative maintenance purposes shall be available at all
preventative maintenance schedule will be made available to the Contractor on a
monthly basis; therefore, the City expects 100 percent compliance and stock outs of
these parts will be unacceptable.
additions requested by the Contractor to meet contractual performance standards,
shall be subject to the approval and continuous review of the Fleet Superintendent, or
designee, in conjunction with the Contractor. The minimum stocking level is defined
additional quantity to cover typical lead time for replacement orders.
The City shall maintain a right to conduct periodic parts price comparison review to
ensure that the City is continually obtaining the best price. The Contractor shall provide
a report detailing all parts purchased and the prices paid by the Contractor. The
quarterly report shall also include the sale prices to the City. When savings are
incurred, the Contractor shall also report the savings that the Contractor is providing
the City. The savings can include timely delivery, discounts, labor savings, etc.
2. Asset Management System
The Contractor's proposal shall include a parts ordering and tracking software system
The contractor shall use the City's Fleet Management Software, CCG Systems Inc,
FASTER, for the purpose of electronic parts requests and issuing parts to work orders,
in the most cost effective and expeditious manner possible. The Contractor shall be
responsible for supplying and maintaining all of the associated computer hardware for
l be capable of providing
software system shall be able to produce all reports specified in this Scope of Services.
3. Electronic Parts Catalog
The contractor shall utilize an automated ordering system with an electronic parts
catalog.
4. Records
The Contractor shall provide authorized representatives of the City, at all reasonable
times, access to and copies of all electronic and hard data, books, records,
correspondence, instructions, plans, drawings, receipts, vouchers, time cards, and
memoranda related to any agreement resulting from this solicitation, and shall provide
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cost verification for parts provided to the City under the terms of this solicitation within
a commercially reasonable time after the request , not to exceed 10 business days.
5. Reference Files and Procedures
The Contractor shall maintain, or have access to, the service manuals, parts manuals,
service bulletins, lubrication charts, and other information necessary to procure and
supply the parts and related materials to properly service and repair the City's fleet.
The Contractor shall make these materials available to City personnel upon request.
These records become the property of the City at contract termination or conclusion.
6. Reporting
All reports must be comprehensive of all parts sales and inventory. All reports are
required to specifically identify each part number in detail. Reporting must be provided
electronically as well as in paper form.
Compliance with all daily, weekly, monthly, quarterly, semi-annual and annual
reporting requirements as outlined above in the REPORTS section. Compliance is met
when daily reports are submitted the following morning, weekly reports are submitted
the second day of the following week and monthly, quarterly, and semi-annual reports
th
are submitted by the 15 day after each period being reported. The City expects a 95
percent overall compliance rate on all required reports.
DAILY REPORTS
a. Daily Stock Out Report
that should be normally stocked. This report shall allow City staff to easily
identify the preventative maintenance parts to ensure there are none on
the report. The items on the Stock Out report shall be expedited by the
Contractor through locating other suppliers who can fill the order or locate
an alternative item, meeting specifications, to propose to the Fleet Services
Superintendent, or his designee. Alternate stock items shall not be
ordered until approval is granted by the Fleet Services Superintendent, or
his designee.
A stock out ratio of <2% of total inventory requested. The ratio is determined by the
ntory which has been assigned a min/max stocking level.
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b. Daily Reconciliation Report The report shall reconcile all parts
management software. At a minimum the report shall include: part/item
number, invoice number, work order or independent issue number, fleet
unit number, quantity, unit price, extended price, item description, and date
and time part was issued. Fleet Services staff will validate the spreadsheet
against the sales ticket, which will be signed by the Fleet Technicians at
the time parts were received. The report shall reflect the daily sales total.
will validate the Excel spreadsheet.
c. Parts in Stock and On Order Report The report shall be made available
shall demonstrate all parts available for immediate sale and the parts that
are on order. The items on order shall include the quantity on order and
the estimated delivery date. This report shall include the daily order fill
rate, which shall demonstrate a comparison of the in-store items versus the
non in-store items. The daily order fill rate for the in-store items shall be 98
percent or higher.
d. Daily Backorder Report A detailed report listing all parts ordered that
suppliers have placed in a backordered status. Report should include date
ordered, part number, quantity, vehicle number, vendor, and expected fill
date and time. This report shall be made available on a daily, or on on-
demand basis, to help the City with their service scheduling. This report
but were not available at the time of the order. The Contractor shall
expedite these items through locating other suppliers who can fill the order
or locate an alternative item, meeting specifications, to propose to the Fleet
Services Superintendent, or his designee. Alternate stock items shall not
be ordered until approval is granted by the Fleet Services Superintendent,
or his designee.
MONTHLY REPORTS
a. Parts Issued Report The Contractor shall submit a monthly summary
report to the City that fully describes the parts supplied for that month, by
work order, by unit number, and by line item with costs assigned. The
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monthly report shall also include demonstration of compliance with
performance standards established during negotiation of any contract
resulting from this solicitation. The Contractor shall provide monthly reports
on the effectiveness of their operation.
b. Monthly Inventory Turns Report The Contractor shall provide a report
listing the top 100 inventory items in sales each month. The report shall list
the part number, d
and on-hand inventory valuation.
c. Monthly Warranty Report - The Contractor shall submit a warranty report
as often as required to the City that fully describes the parts eligible and
supplied, by line item and with costs assigned under the warranty
provisions of this solicitation. The report shall clearly identify the
warrantied part by serial number, sales ticket number, or another
identifying number that can be traced to the sale of the item.
QUARTERLY REPORTS
a. Quarterly Cost Savings Report - The Contractor shall submit a list of any
parts being supplied to the City at a cost less than previously provided and
the resulting annualized savings. The savings shall include savings in the
area of parts price, discount including volume discount, labor cost,
overhead, etc. The report shall indicate that the Contractor obtained the
lowest available pricing, a.k.a. lowest landed cost, for the parts sold to the
City. The highest turnover rate in parts, as well as the highest valued parts
sold over a three month period will determine which items will be included
in the quarterly savings report. The savings offered by the Contractor may
also include labor savings, delivery savings, and/or discounts that were
utilized.
b. Actual Part Cost vs. Retail Cost Report The City will be conducting a cost
comparison review on a quarterly basis. The Contractor shall provide a
to the City (se
the benefit of outsourcing the services provided under this contract. This
analysis will be prepared internally by Fleet Services, in conjunction with
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report, third-party quoted parts, inventory carrying cost information, labor
costs, and profit of the contractor.
c. Lost Sales Report and Analysis - The report shall demonstrate how the
monthly sales are performing against the predetermined sales target. The
sales target shall be determined through a joint effort between the
should
automatically determine the annual sales target in dollars. The report will
allow the Contractor and the City to identify where improvements can be
gies.
SEMI-ANNUAL REPORTS
a. Semi-Annual Inventory on Hand Report A detailed report listing all parts
include part number, quantity on hand, cost and min/max levels assigned
to each part number.
b. Automatic Stock Levels by Part Report - The report shall indicate the
recommend stocking levels based on the sales for the part (inventory turns).
City staff will assist Contractor in determining the minimum and maximum
stocking level for each part carried in inventory. The Parts in Stock report
-determined stocking
levels. The City and the Contractor shall identify a targeted maximum level
for each part. The Automatic Stock Levels by Part Report or the Parts in
Stock Report shall identify all non-moving items, which are items turning less
than four (4) times per year.
c. Physical Inventory Count and Rationalization - The contractor shall outline
its detailed approach for conducting the physical inventory count and
rationalization, including time frame required and the level of involvement
necessary on the part of the City employees. The Contractor's cost
proposal for rationalizing and disposing of excess inventory shall be part of
the Cost Proposal described below.
Orientation of Contractor and City Personnel.
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Description of resources to be applied by Contractor.
Description of resources required from the City of Denton.
Description of security measures during transition. Record Keeping, Reference
Materials, and Reporting Requirements. Note that a Monthly On-Hand Inventory
Valuation Report shall be provided to the City at the end of each cycle count.
ANNUAL REPORTS
a. Annual Reports - On the calendar year of the effective date of the Contract
and every other anniversary date thereafter, the Contractor shall submit to
the City a written annual report that summarizes the year's activity in a
format agreed upon by the Contractor and the City. The following specific
annual reports are required, at a minimum, to be submitted to the City.
b. Cost Savings Report - The Contractor shall submit a summary of all parts
supplied to the City at a cost less than previously provided and the
resulting annualized savings. The savings shall include savings in the area
of parts price, discount including volume discount, labor cost, overhead,
etc. The report shall indicate that the Contractor obtained the lowest
available pricing, a.k.a. lowest landed cost, for the parts sold to the City.
The highest turnover rate in parts, as well as the highest valued parts sold
over the prior twelve (12) months will determine which items will be
included in the savings report. The savings offered by the Contractor may
also include labor savings, delivery savings, and/or discounts that were
utilized.
c. Annual Sales Summary Report The report shall summarize the pricing
paid by the City for all parts invoiced and paid by the City. The prices shall
be broken down by each invoice issued during the course of the year. At a
mini
unit number, work order number, part number, part description, quantity
sold per invoice, unit price, and extended total. The report shall show an
annual total for the quantity, average unit price, and a grand total for the
extended cost.
d. Annual Parts Warranty Report - The annual warranty report shall
summarize all parts sold to the City over the prior twelve (12) months that
qualify for warranty coverage. The report shall clearly identify the
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warrantied part by serial number, sales ticket number, or another
identifying number that can be traced to the sale of the item.
AD HOC REPORTING
The City reserves the right to obtain additional reports as required to the extent
reasonably ca
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The contractor shall provide such other related services as may be required and
directed by the City. Advance approval is required in writing before access to any
facility after hours is authorized or any overtime is performed.
1. Training
The Contractor will make available an average of 24 hours of training annually to City
Fleet Services technicians. This shall include, but not be limited to, classroom and
hands-on training, new and or current product review, new procedures and ASE
Certification training. The content and quality for such training will be mutually agreed
upon between City and the Contractor.
2. On-Site Disposal and Recycling Services
The Contractor agrees to arrange for third parties to handle the disposal and/or
recycling of used motor oil, used oil filters, used hydraulic fluid, used anti-freeze, used
refrigerant, scrap tire casings, used batteries, and battery acid, but will not be directly
involved in the actual disposal of such items. Contractor shall only use Disposal
waste products. Use reasonable commercial efforts to Contractor shall defend the City
City in processing any claim that may arise against such third party associated with the
disposal of the items. The City reserves the right to select all, some or none of the items
for disposal. Disposal of any such products shall be only in a manner prescribed by
Federal, State and local laws. Contractor shall immediately convey to the City, all
documentation received including but not limited to manifests and other records for
shipping and disposal of such products to ensure proper disposal, handling and
shipping, for permanent retention, in accordance with all applicable laws. The proposal
shall include disclosure of any notice of violation received by the proposer concerning
shipment or disposal of any such product or other hazardous material. All recycled
items shall be billed to the City at a pass-through cost only. Any revenue generated
Contract # 5641Service Agreement Page 24of 76
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tract Administration
Supervisor at the following address:
City of Denton Purchasing
Attn: Contract Administration Supervisor
901 B Texas Street
Denton, TX 76209
F.#/.42!#4/2 )-0,%-%.4!4)/. 0,!.
1. Implementation Plan
The contractor shall present an Implementation Plan that identifies all actions to be
taken and the resources they will employ to accomplish a successful transition of
services under any agreement negotiated pursuant to this solicitation. At a minimum,
the Implementation Plan must describe the following categories in detail:
a. Continuity of Service
The Contractor shall develop and submit a proposed implementation plan that outlines
the process to be followed, time frames required, and any measurable milestones in
the plan for ensuring continuity of service during the transition period.
b. Purchase of Current Inventory
The Incumbent currently maintains the inventory of parts and supplies in the City's
Fleet Services parts warehouse. The awarded contractor shall purchase this inventory,
at the acquisition cost from the incumbent at the inception of any agreement resulting
from this solicitation.
All proposals must include a plan for accomplishing a physical inventory count of all
existing parts inventories, and a methodology for rationalizing inventory size. (The
physical inventory count and rationalization must be conducted as part of any
implementation plan, and be acceptable to both the City and the Contractor).
All Contractor branded parts and supplies will remain the sole property of the
Contractor unless purchased by the City in accordance with the buy-back terms set
forth herein.
Material Safety Data Sheets
The City maintains a cataloging system for all chemicals, chemical compounds, and
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chemical mixtures. The Contractor shall provide a Material Safety Data Sheet (MSDS)
for all chemicals and parts containing any potential hazardous material. The MSDS
documents shall be kept up-to-date and available to City staff at all times.
c. Safety and Environmental Hazards
The City does not warrant or guarantee against the possibility that safety or
maintenance facility.The Contractor, as the incumbent, shall be responsible for
conducting ongoing monthly Safety inspections to identify any hazardous conditions
and notifying the City of these conditions in writing immediately upon identification of
any perceived hazard Notwithstanding the foregoing, the City shall, at all times during
the term of the contract, at the City
or other personal property located in the on-site store(s)) the roof, exterior walls,
foundation, and structural portions of the on-site store(s) and all portions of the
electrical and plumbing systems lying outside of the on-site store(s) but serving the on-
site store(s).
d. Facility and Inventory Inspections
Facility and inventory inspections by City and Contractor personnel shall be an element
in the negotiations and transitions of any contract resulting from this solicitation. The
Contractor shall schedule with the City a joint parts room inspection for the purpose of
identifying pre-existing deficiencies pertaining to the buildings, utility systems,
equipment, and other assets. The Contractor and the City together shall make a
complete and systematic inspection and inventory of all structural, mechanical,
electrical, utility systems, and equipment and furniture to which the Contractor shall
have access during the course of the agreement period. The Contractor shall then
prepare and submit to the City a Pre-Existing Deficiency Report describing all observed
deficiencies pertaining to the building structure, systems, equipment, or other assets
noted during the joint inspection no later than five (5) days after the joint inspection.
The City and Contractor shall then develop a mutually acceptable time table for the
correction of any noted deficiencies. The allocation of costs and the completion of the
corrections will be mutually agreed upon during contract negotiations.
e. Receipt of Assets
The Contractor shall be required to acknowledge receipt by signature of assets
provided by the City for the Contractor's use. The assets accepted by the Contractor
for the term of the agreement shall then become the responsibility of the Contractor.
Upon completion of the agreement, these assets shall be returned in the same
condition in which they were provided to the Contractor, less normal wear and tear.
The Contractor shall be responsible for replacing any stolen, missing, or destroyed
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asset with a comparable asset at the Contractor's expense.
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./.ȃ2%.%7!, /& #/.42!#4
Upon termination, expiration, or non-renewal of the contract, Contractor shall have the
option to require the City to purchase all non-NAPA branded inventory owned by
Contractor and located in the on-most recent acquisition cost.
Additionally, the City shall have the option to purchase all NAPA branded inventory,
owned by Contractor and located in the on-
ng of all
NAPA and non-NAPA branded inventory owned by Contractor and located in the on-site
store(s).
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1. Fleet Services Parts Warehouse
The City will permit the Contractor use of the existing Fleet Services Parts
Warehouse, including installed equipment such as furniture, shelving and racks,
through an executed lease agreement. The City will reimburse the Contractor for any
and all costs and expenses charged to Contractor or incurred by Contractor under such
executed lease agreement. Such costs and expenses will be deemed an operational
cost and will be paid to Contractor in accordance with the terms set forth in the pricing
section below. The Contractor will be provided with exclusive access to those portions
of the Fleet Services facility so designated for its use subject to the City's right to
inspect and audit. The Contractor shall be responsible for parts room clean up and
custodial services and must maintain the facility in a presentable manner. The City will
provide physically separated space for the purpose of parts inventory storage as is
mutually agreed upon by the Contractor and the City. Facility inspections by City and
Contractor personnel will be an element in the negotiations and transitions of any
contract resulting from this solicitation. The City shall maintain a set of keys to all
facilities for security and emergency situations only. The keys will be under exclusive
control of the Fleet Superintendent. The City shall provide to Contractor written notice
prior to entering the secured parts area, except in the event of a declared emergency.
2. Utilities
The City will be responsible for supplying all utilities, including refuse collection, to the
facility operated by the selected Contractor. The City will supply the utilities and
communication infrastructure necessary for the Contractor to operate an efficient parts
operation. Contractor will be responsible for their own telephone/fax charges including
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employee cellular telephones.
The Contractor shall not use the facility or other property furnished by the City for
provision of parts to vehicles not owned or leased by the City. The Contractor shall not
use City property for any personal advantage, business gain, or other personal
endeavor by the Contractor or the Contractor's employees other than in the
performance of the work described in the agreement.
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PAYMENT TERMS/PRICING
pany and
NAPA shall invoice the CUSTOMER for all inventory purchased pursuant to this contract
on a monthly basis according to the pricing plan below. CUSTOMER agrees to pay the
entire amount of all statements received from NAPA within thirty (30) days following
receipt of any such statement. If CUSTOMER has not paid the entire amount of all
statements received from NAPA within 30 days following receipt of such invoice,
CUSTOMER a,
until amount is has been paid in full. No prompt pay
discount is available under this Agreement.
it
.
following elements:
(a) Product Costs. The pricing of the inventory to be supplied to CUSTOMER by
NAPA pursuant to this Agreement. Product Costs shall be further divided NAPA
Product CostsNon-
NAPA Product Costs
manufactured by NAPA suppliers but which have been acquired for CUSTOMER by
NAPA pursuant to this Agreement.
(b) Outside Purchases or Services Costs. Outside Purchases or Services Costs is
the pricing of those parts or services not traditionally stocked or performed by NAPA.
Contract # 5641Service Agreement Page 28of 76
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(c) Operational Costs. Any and all costs and expenses associated with the operation
of the On Site Store(s), including, but not limited to, the Corporate Allocation Expenses
(as defined below), any and all costs and expenses charged to Contractor or incurred by
Contractor under that certain Lease Agreement entered into between Contractor and the
City on _________, 2016, vehicle gas and maintenance costs, salary and benefits
insurance, unemployment insurance, personal property insurance for the On Site
Store(s), inventory, any deductible for losses covered under the insurance policies of
NAPA, and all equipment supplied by NAPA. Corporate Allocation Expenses may include
but are not limited to, inventory investment expense, pension funding cost, executive fees,
accounting fees, general office fees, and shared service expense. An example of a profit
and loss statement reflecting such costs and expenses is attached hereto as Schedule 1.
CUSTOMER acknowledges and agrees that the costs and expenses reflected on the
profit and loss statement set forth on Schedule 1 are subject to change based on actual
monthly costs, expenses or Corporate Allocation Expenses incurred relative to the
operation of the On Site Store(s). To achieve economies of scale, NAPA utilizes certain
headquarter and corporate personnel or assets in the performance of this contract. As a
percentage of sales for each contract year.
As such, there is not a supportive invoice for such expenses other than an annual
allocation rate statement. This Corporate Allocation Expense allows NAPA to have fewer
employees performing mundane or menial tasks such as paper work and filing at the On
Site Store(s) allowing NAPA counter personnel to focus more attention on serving the
On-Site Store operations and maximizing on-site cost efficiency.
(d) Management Fee. CUSTOMER shall be billed a Management Fee (as defined
below) on a monthly basis in accordance with the terms below.
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PRICING PLAN SUMMARY
NAPA Product Costs Billed to CUSTOMER at jobber net store
acquisition cost
Non-NAPA Product
Costs and Outside Billed to CUSTOMER at a 0% gross profit rate
Purchases and
Services
Operational Costs Billed to CUSTOMER at cost or at the current
corporate annual allocation rate for those
services performed by headquarter and
corporate personnel.
Management Fee Billed to CUSTOMER in accordance with the
terms below
Net Profit Target 10% net profit for NAPA
NAPA Product Costs shall be billed to CUSTOMER at jobber net store acquisition cost.
Non-NAPA Product Costs and Outside Purchases/Services shall be set by NAPA to yield
a gross profit of zero percent (0%). Operational costs will be charged to CUSTOMER at
cost or at the current corporate annual allocation rate for those services performed by
headquarter and corporate personnel, with all such charges for Operational Costs to be
included in CUSTOM
CUSTOMER shall pay to NAPA on a monthly basis a management fee equal to ten
percent (10%) of the Total Monthly Net Sales (as defined below) during the preceding
the total dollar amount of all products (both NAPA and Non-NAPA) and outside purchases
and services sold to the CUSTOMER during the preceding month at the costs set forth in
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the pricing plan summary above less purchase returns.
CUSTOMER agrees to encumber sufficient funds necessary to cover the anticipated
amount of all financial obligations owed to NAPA, including but not limited to, projected
operational expenses, product to be purchased from NAPA, non-NAPA inventory buy-
back, and agreed profit for the applicable state fiscal year. The parties agree to mutually
work together to adjust the amount if such amount must be increased during the term of
the contract. CUSTOMER retains the right to exercise the provisions of Section 28 of
Exhibit C Standard Terms and Conditions if the governing body does not award funding
for the contract. CUSTOMER INITIALS ______________
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Contract #5641
Schedule 1
Sample Profit and Loss Statement
Contract # 5641Service Agreement Page 32of 76
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Genuine Parts Co
dba- NAPA Auto Parts
635 Freeport Parkway
Coppell Texas 75019
IBS Operational Expense Invoice
Sold to:City of Denton IBS
Date :July 1, 2016
Invoice No:4711606
Account # : City of Denton Operations Expense Account
Description of Billing:
Jun-16OPERATIONAL EXPENSE FOR PARTS DEPARTMENT43,642$
See attached Summary detail
Note:
Remit payments to:
Genuine Parts Company
dba- NAPA Auto Parts
P.O. Box 848033
Dallas TX 75284-8033
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IBS Expense Summary
Disclaimer- Individual Line item values stated in dollars, Section totals rounded to dollars from original values
Notes
City of Denton Expense CategoryCurrentYTD
Customer Part Purchases201,991201,991
Cost of Goods to NAPA201,244201,244
Gross Markup Margin747747
Payroll Expenses
Manager/Counter Salaries13,28813,288
Employee Pension/401K909909
Group Insurance/Benefits2,7622,762
Workers Comp Insurance337337
Payroll Taxes1,1231,123
Total IBS Payroll Expenses18,41918,419
Miscellaneous Expenses
Delivery Maintenance/Gas101101
Truck Payment450450
Facility Expenses7777
Shelving/Equipment Depreciation00
Store Expenses400400
Computers and Support Equipment549549
Freight & Postage219219
Training00
Total IBS Misc Expense17961796
Corporate Allocated Expenses 3,974 3,974
TOTAL EXPENSES24,18924,189
Gross Margin Less Expenses-23,443-23,443
Miscellaneous Adjustments00
IBS Management Fee4364243,642
NAPA's Return on Investment2019920199
NAPA Monthly Expense Billing Breakdown
Contracted Management Fee20,199 10% of Total Monthly Net Sales
Less Profits received:(747) Profits from Invoices (Sales less cost & adjustments)
Total Expenses24,189
Misc Discounts0
Balance due NAPA after adjustments43,642
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Contract #5641
Exhibit C
Standard Purchase Terms and Conditions
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Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
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
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
-of-way.
1.. The Contractor shall fully and timely provide all
r 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 use commercially
reasonable efforts to cause it manufacturers to 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
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 the deliverables.
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6.DELIVERY TERMS AND TRANSPORTATION CHARGES:All normally stocked, and
locally available, items will be furnished FOB Destination, Prepaid and Allowed, and all non-stock
items, non-locally available items, special/custom and emergency orders will be furnished FOB
Destination, Prepaid and Added, which means that Contractor initially pays the freight and then
adds the freight charges to its invoice to the City for reimbursement.
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 t
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
cations, 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 performa
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,
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.
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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
11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL
REGULATIONS: The Contractor, its Subcontractors, and their respective employees, shall
comply fully with all applicable federal, state, and local health, safety, and environmental laws,
ordinances, rules and regulations in the performance of the services, including but not limited to
those promulgated by the City and by the Occupational Safety and Health Administration (OSHA).
In case of conflict, the most stringent safety requirement shall govern. The Contractor shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions,
judgments, fines, penalties and liability of every kind
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
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, s
address and, if applicable, the tax identification number on the invoice must exactly match the
g, the
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.
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13.PAYMENT:
A. All proper invoices need to be sent to Accounts Payable.A copy of the invoice shall be sent to
Fleet Services on the same day.Approved invoices will be paid within thirty (30) calendar days
eing 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 dispute any invoice submitted by Contractor, in accordance with provisions of
Texas Government Code 2251.
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.
G. The awarding or continuation of this contract is dependent upon the availability of funding.
m 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. The City warrants and represents that it reasonably believes that it will have sufficient
funds to make all payments due pursuant to the contract, and hereby covenants that it will do all
things lawfully within its power to obtain, maintain, request and pursue funds from which the
said payments may be made.
14.TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the
term of this contract, the contractor shall bill and the City shall reimburse contractor for all
reasonable and approved out of pocket expenses which are incurred in the connection with the
performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by
the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise
negotiated.
15.FINAL PAYMENT AND CLOSE-OUT:
A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified
Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance
Report to the Purchasing Manager no later than the 15th calendar day after completion of all work
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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
under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising
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 two 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, 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. Audit results will be based upon
overcharges and undercharges being combined to determine the net impact. If the audit results in
a net overcharge, Contractor will issue a check to the City equal to the net overcharge amount.The
cost of the audit will be borne by the City.
B. Failure to comply with the provisions of this section shall be a material breach of the Contract
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 identified in the Plan, unless the substitute has been accepted by the City in
writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or
remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan
has been approved, the Contractor is additionally required to submit a monthly Subcontract
Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day
of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
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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.
E. For the avoidance of any doubt, the S
and throughout these terms and conditions and RFP shall specifically exclude all third party
suppliers and manufacturers of the products sold hereunder and all third party delivery service
providers (i.e. UPS and FedEx).
19.WARRANTY-PRICE: 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.
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, and security interests. The Contractor shall indemnify and hold the City harmless from and
against all adverse title claims to the deliverables.
21.WARRANTY DELIVERABLES: INTENTIONALLY DELETED.
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
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or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty.ALL OTHER
WARRANTIES, OBLIGATIONS AND LIABILITIES OF CONTRACTOR ARE EXCLUDED,
WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
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
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.
23.ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: The
City will not accept incomplete or non-conforming commodities or parts, and shall dispute any
invoiced amount for such, in accordance with the provisions of Texas Government Code 2251.
24.RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to
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
the City. Likewise, the City shall be in default under the Contract if the City (a) fails to fully,
timely and faithfully perform any of its material obligations under the Contract or (b) becomes
insolvent or seeks relief under the bankruptcy laws of the United States.
27.TERMINATION FOR CAUSE: In the event of a default by either party, the other party shall
have the right to terminate the Contract for cause, by written notice effective ten (10) calendar
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days, unless otherwise specified, after the date of such notice, unless the defaulting party, within
such ten (10) day period, cures such default, or provides evidence sufficient to prove to the other
partyEither party may pursue all
remedies available to it at law or in equity, including without limitation, remedies at law in a court
of competent jurisdiction, in the State of Texas. Additionally, in the event of a default by the
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:Either party shall have the right to terminate the
Contract, in whole or in part, without cause any time upon ninety (9 prior written
notice. Upon receipt of a notice of termination, both parties 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
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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
subcontractors, and third parties), ii. "Fault" shall include the 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
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. To the extent permitted by contract or law,
Contractor shall take all such steps as are necessary in order to assign or otherwise extend to the
City the full benefit of any representations, warranties, indemnities and other protections that
Contractor has received or to which Contractor is otherwise a beneficiary with respect to any
product (including any representation, warranty, indemnity or other protection provided by the
manufacturer of any product). Additionally, Contractor agrees to use commercially reasonable
efforts to ensure that its contracts and other agreements with the manufacturers of any product
permit the assignment of any such representations, warranties, indemnities and other protections
to subsequent commercial purchasers of the applicable products (including the City).
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.
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
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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.
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
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
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 for
any of the indemnified claims set forth above and assumed by Contractor.
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.
notice of erosion of the aggregate limits below occurrence limits for all applicable
required minimums and are not intended to limit the responsibility or liability of the
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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
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 C
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 Contractor shall provide the City good and indefeasible title to the
deliverables.
37.CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may
inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the City or its licensors consider confidential)
e
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,
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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: INTENTIONALLY DELETED.
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
consent, the fact that the City has entered into the Contract, except to the extent required by law.
41.NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has
been employed or retained to solicit or secure the Contract upon any agreement or understanding
for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona
fide established commercial or selling agencies maintained by the Contractor for the purpose of
securing business. For breach or violation of this warranty, the City shall have the right, in addition
to any other remedy available, to cancel the Contract without liability and to deduct from any
amounts owed to the Contractor, or otherwise recover, the full amount of such commission,
percentage, brokerage or contingent fee.
42.GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without
liability if it is determined by the City that gratuities were offered or given by the Contractor or
any agent or representative of the Contractor to any officer or employee of the City of Denton with
a view toward securing the Contract or securing favorable treatment with respect to the awarding
or amending or the making of any determinations with respect to the performing of such contract.
In the event the Contract is canceled by the City pursuant to this provision, the City shall be
entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost
incurred by the Contractor in providing such gratuities.
43.PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer,
employee, independent consultant, or elected official of the City who is involved in the
development, evaluation, or decision-making process of the performance of any solicitation shall
have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any
willful violation of this section shall constitute impropriety in office, and any officer or employee
guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Contractor shall render the
Interest Questionnaire.
44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an
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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,
nd
control of the Contractor or any employee of the Contractor, and it is expressly understood that
Contractor shall perform the services hereunder according to the attached specifications at the general
direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The
contractor is expressly free to advertise and perform services for other parties while performing
services for the City.
45.ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Contractor without the prior written consent of the City. Any attempted
assignment or delegation by the Contractor shall be void unless made in conformity with this
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity
not a party hereto; it being the intention of the parties that there are no third party beneficiaries to
the Contract.
46.WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party. No waiver by either
the Contractor or the City of any one or more events of default by the other party shall operate as,
or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an
express or implied acceptance of any other existing or future default or defaults, whether of a
similar or different character.
47.MODIFICATIONS: The Contract can be modified or amended only by a writing signed by
both parties. No pre-printed or similar terms on any the Contractor invoice, order or other
document shall have any force or effect to change the terms, covenants, and conditions of the
Contract.
48.INTERPRETATION: The Contract is intended by the parties as a final, complete and
exclusive statement of the terms of their agreement. No course of prior dealing between the parties
or course of performance or usage of the trade shall be relevant to supplement or explain any term
used in the Contract. Although the Contract may have been substantially drafted by one party, it
is the intent of the parties that all provisions be construed in a manner to be fair to both parties,
reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC
definition shall control, unless otherwise defined in the Contract.
49.DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to
negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing
of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party
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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
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 or Contractor 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:
MLK Day
Memorial Day
4th of July
Labor Day
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Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas 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
approvedby 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:
discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability,
creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected
to discrimination under any activities resulting from this RFQ.
B. Americans with Disabilities Act (ADA) Compliance:
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BUY-AMERICAN ACT-SUPPLIES: INTENTIONALLY DELETED. The parties agree
that Contractor will not be required to comply with the requirements of the Buy-American Act
under this Contract.
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 will be passed on to the City
and included in the Corporate Allocation Expenses for reimbursement.
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
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http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov
for Denton County, Texas (WD-2509).
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor
shall comply with all applicable State, Federal, and Local laws and requirements. The Respondent
must comply with all applicable laws at all times, including, without limitation, the following: (i)
§36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code,
which prohibits the offering or conferring of benefits to public servants. The Respondent shall give
all notices and comply with all laws and regulations applicable to furnishing and performance of
the Contract.
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
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, and subcontractors, 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
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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
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 two (2) 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.
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Contract #5641
Exhibit D
Insurance Requirements
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INSURANCE REQUIREMENTS AND
Upon contract execution, all insurance requirements shall become contractual obligations, which
the successful contractor shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the contracted work has been completed and accepted by
the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance
including any applicable addendum or endorsements, containing the contract number and
title of the project. Contractor may, upon written request to the Purchasing Department,
ask for clarification of any insurance requirements at any time; however,Contractor shall
not commence any work or deliver any material until he or she receives notification that
the contract has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted:
Each policy shall be issued by a company authorized to do business in the State of Texas
with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions
with respect to the City, its officials, agents, employees and volunteers; or, the contractor
shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Cancellation: The Contractor will endeavor to provide the City at least 30 day written
notice should any of the policies described on the certificate be cancelled or
materially changed before the expiration date.
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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 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 per occurrence limits of not less than $1,000,000.00
shall be provided and maintained by the Contractor. The policy shall be written on an
occurrence basis either in a single policy or in a combination of underlying and
umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations, products
and completed operations, independent contractors and property damage
resulting from explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
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\[X\] 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 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
rence" basis and the policy shall be issued by the same insurance company
that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00
combined bodily injury and property damage per occurrence with a $1,000,000.00
aggregate.
\[ \] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the
contractor or if a contractor leases or rents a portion of a City building. Limits of not less
than each occurrence are required.
\[ \] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
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\[ \] 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
Said coverage may be
Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11,
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 b
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.
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ATTACHMENT 1
\[\]
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,
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and provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the
project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
2. no later than seven days after receipt by the contractor, a new certificate
of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the project.
F. The contractor shall retain all required certificates of coverage for the duration
of the project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail
or personal delivery, within 10 days after the contractor knew or should have
known, of any change that materially affects the provision of coverage of any
person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
its employees providing services on the project, for the duration of the
project;
2. provide to the contractor, prior to that person beginning work on the project,
a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the project, for the duration
of the project;
3. provide the contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the duration
of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
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a. a certificate of coverage, prior to the other person beginning work on the
project; and
b. a new certificate of coverage showing extension of coverage, prior to the
end of the coverage period, if the coverage period shown on the current
certificate of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of any
change that materially affects the provision of coverage of any person
providing services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all
employees of the contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes and
payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured, with the
commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the contractor to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K. Th
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.
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Contract #5641
Exhibit E
Lease Agreement
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STATE OF TEXAS
COUNTY OF DENTON
LEASE AGREEMENT
This Lease Agreement (hereafter the "Lease Agreement") is made and entered into effective
as of the Effective Date, as set forth below, by and between THE CITY OF DENTON,
TEXAS (hereinafter sometimes referred to as "LESSOR" and/or "the City"), and
Genuine Parts Company dba NAPA Auto Parts. ("LESSEE").
WHEREAS, LESSOR owns the City's Fleet Services Building Site (the "Site"), located
in the vicinity of 804 Texas Street, Denton, Texas and operates a parts inventory room on the
Site (the "Parts Room");and
WHEREAS, the City desires to lease to LESSEE an approximate 2,775 square foot section of
the building located at the Site (hereinafter the "Leased Premises"); and
WHEREAS, LESSEE desires tolease the Leased Premises from the City for purposes of
operation of an integrated parts inventory management store.
NOW, THEREFORE, for andin consideration of the mutual covenants and agreements herein
contained, and for $1.00 other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, LESSOR and LESSEE, intending to be legally bound, do
hereby AGREE as follows:
ARTICLE 1
PREMISES
1.1 Lease Premises.
LESSOR hereby leases and lets unto LESSEE, and LESSEE hereby leases and lets from
LESSOR the Leased Premises, whichis that certain tract or parcel of real property containing
approximately 2,775 square feet, more or less, located at the Site, commonly referred to as804
Texas Street, Denton, Denton County, Texas.
1.2 Use of Premises.
The Leased Premises are to be occupied and used by LESSEE solely for the operation
of an integrated parts inventory management store. In the event LESSEE for any reason desires
hereafter to substantially modify and/or substantially change its use of any of the Leased
Premises, the nature and terms of such modification and change must be approved in writing by
LESSOR and this Lease Agreement must be amended in writing toauthorize the same.
1.3 Lessee Construction on Lease Premises.
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LESSEE shall have the right to construct minor improvements on the Leased Premises, such
as shelving, lighting, etc. and this right shall continue in effect throughout the term of this
Lease Agreement. All improvements shall be submitted to the City of Denton Facilities
permitting and for compliance with the municipal code of Denton, Texas as well as any
applicable environmental laws and/or regulations that are applicable to the LESSEE's operations.
must approve, within twenty (20) days, or must provide
LESSEE a written statement advising why the minor construction plans are not approved.
All improvementsconstructed or placed on the Lease Premises by LESSEE shall remain the
property ofLESSEE during the term of this Lease Agreement and any renewal or extension
hereof. For real property fixtures, they shall remain the property of LESSEE, and upon the
termination of this Lease, the LESSEEis under a duty to promptly, within sixty (60) days of the
expiration of the term of this Lease Agreement, remove any and all improvements and fixtures
installed or constructed by LESSEE with no damage to the leased premises. LESSEE agrees
to surrender the premises toLESSOR in broom-clean condition. The LESSEE covenants to
LESSOR that upontermination of this Lease the subject real property shall be free and clear of
any and all materials or waste that LESSEE abandons on the subject real property.
1.4Easements.
None granted.
1.6 Signs.
LESSEE shall be entitled to erect, install, and maintain on the Leased Premises identification
andadvertising signs appropriate toits business; provided, however, that all such signs at
all times shall be subject to the prior written approval of LESSOR asto location, size,
shape, color and content. Said approval is conditioned upon the signs meeting the
requirements of the applicable City ordinances of the City of Denton,Texas.
1.7 Lien Claims.
LESSEE hereby covenants to unconditionally indemnify LESSOR from and against, and
hold LESSOR harmless from any and all lien claims of any nature whatsoever arising out of
or in any manner connected with the construction, installation, erection, maintenance, repair,
occupancy, use and/or operation of any improvements, facilities and/or equipment of
LESSEE or any third person on or about the Leased Premises byorat the direction of
or with the permission of LESSEE; and LESSEE further agrees that it shall, in the event
any such liens are filed, forthwith effect their removal and/or satisfaction. Provided, however,
LESSEE shall have the right, at its sole cost and expense, and after having given LESSOR prior
written notice of its intent to do so, to promptly contest by appropriate legal proceedings
diligently conducted in good faith, the amount, validity or application, in whole or in part, of
any such lien or liens, provided (i) such proceedings shall suspend the collection of such lien(s);
(ii) neither the Leased Premises nor any rent therefor, nor any portion of same, would be in
danger of attachment, forfeiture, loss or similar consequence; and (iii) that LESSEE shall first
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furnish security to the City's reasonable satisfaction to bond said lien or liens off of the Leased
Premises.
1.8 Inspection and/or Repair of Leased Premises.
LESSEE shall at all times maintain the Leased Premises including all improvements thereon in
good condition. LESSEE shall be responsible for all maintenance, repair and replacement of the
Leased Premises and all improvements thereon except for repairs or replacements causedby the
acts or negligence of LESSOR, its agents or employees.
1.9 Warranty.
LESSOR represents and warrants that it owns the Leased Premises and that LESSOR is fully
authorized to enter into this Lease Agreement with LESSEE. In addition, LESSOR represents
and warrants thatit has not granted any mortgages or pledges of the tract of real property leased
hereunder. Itis understood and agreed that any mortgage, pledge, or other encumbrance of the
property leased hereunder shall be subordinate to this Lease Agreement and that any such
mortgage, pledge, or other encumbrance shall contain specific provisions providing that all of
LESSEE's improvements or appurtenances on the property leased hereunder, as well as any
products or other contents in or onsaid improvements or appurtenances, are excluded from such
mortgage, pledge or encumbrance, and that LESSEE hereunder retains the right to remove any
and all such improvements or appurtenances, as well as any products or other contents in or on
said improvements or appurtenances, in accordance with the terms of this Lease Agreement, and
thatin the event of a foreclosure, LESSEE shall have the right to continue to occupy the Lease
Premises pursuant to the terms of this Lease Agreement so long as LESSEE is not in default
hereunder.
ARTICLE 2
LEASE TERM
2.1 Primary Term.
The Primary Term of this Lease Agreement shall be for a term in conjunction with the award
of the City of Denton Fleet Vehicle and Equipment Integrated Parts Inventory Support
Services Contract, the Effective Date of this Lease Agreement, unless sooner terminated as
provided for herein; provided that this Lease Agreement is approvedby the Denton City Council.
2.2 Renewal Terms.
Provided that LESSEE isnot in default, and provided that this Lease Agreement is otherwise in
full force and effect, this Lease Agreement may be extended in conjunction with the renewal fo
the City of Denton Fleet Vehicle and Equipment Integrated Parts Inventory Support Services
Contract. The decision to extend the Lease Agreement must be a mutual decision made by both
LESSOR and LESSEE.
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2.3 Assignment of Lease Agreement
LESSEE shall not assign, sublet, mortgage or pledge this Lease Agreement or any interest herein
or in the Leased Premises or any part thereof, nor shall any assignment, sublease or transfer of
whatever kind of any interest of LESSEEhereinby operation of law or by reason of LESSEE's
bankruptcy become effective, without the prior written consent of LESSOR, which consent shall
not be unreasonably withheld; provided however, that the City's refusal to give the City's
consent to a potential assignee who is not as creditworthy as LESSEE, shall be deemed to be
reasonable. Notwithstanding the foregoing, LESSEE shall have the right to assign this Lease
Agreement or sublet the Lease Premises toan entity thatis controlled by, or under common
control with LESSEE, provided that LESSEE remains fully and primarily liable for all of its
obligations under this Lease Agreement.
ARTICLE 3
RENTALS
3.1Rentals.
The rental for the Lease Premises shall be$1 dollar, per year of the Lease Term.
3.2Taxes.
LESSEE agrees to pay all sales and/or use taxes and any and all ad valorem assessments
and/or taxes which may be legally exacted, made, and charged upon and/or levied and/or
assessed against LESSEE's property on the Leased Premises, before the same shall become
delinquent; provided, however, LESSEE shall have the right, atits sole cost and expense
and after having given LESSOR prior written notice of its intention to do so, to contest by
appropriate legal proceedings diligently conducted in good faith, the validity, amount or
application, in whole or in part, of such taxes, levies and/or assessments provided (i) such
proceedings will suspend the collection of the tax, levy, or assessment; and (ii) the Lease
Premises, nor any rent therefrom, nor any portion of itisin danger of seizure, forfeiture, sale,
loss or similar consequences.
3.3 Late Charges on Rentals.
If any installment of rental due from LESSEE is not received by LESSOR within twenty
(20) days of the date upon which it is due, without any notice or demand for payment to
LESSEE being necessary, LESSEE will pay to LESSOR the additional sum of Fifty Dollars
($50.00) asalate charge for each late payment. The late charge represents the reasonable
time andefforts of City staff expended in order to enforce the rental obligation. Acceptance
of any late charge shall not constitute a waiver of with respect to the overdue
amount, nor prevent LESSOR from exercising any other rights and remedies available to
LESSOR.
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3.4No Additional Fees
There shall be no additional fees or assessments made by LESSOR for LESSEE's use
or occupancy of the Lease Premises.
ARTICLE 4
OPERATIONS
4.1 Pollution Control.
LESSEE agrees that it shall use its commercially reasonable best efforts to comply with
all applicable federal, state and local laws, regulations and the common law,as they may
exist currently, oras they may be amended in the future, pertaining to protection of the
environment or human health and safety at the leased premises and/or in the vicinity of any
of its operations or activities that may be permitted hereunder.
4.2Compliance with Environmental Laws and Indemnification.
During the term of this Lease Agreement, LESSEE shall fully comply with all applicable
federal, state and local laws, regulations and the common law,as they may exist currently or
as they may be amended in the future, pertaining to protection of the environment or human
health andsafety atthe leasedpremises.
LESSOR warrants and represents thatat the commencement of this Lease Agreement, that
toits knowledge there is no Hazardous Substance (as defined herein below) including any
petroleum, petroleum product, or other types of hydrocarbons in or on the Leased Premises
incontravention of any federal, state or local laws, regulations or the common law pertaining
to protection of the environment or human health andsafety.
Notwithstanding any provision in this Lease Agreement to the contrary, it is
expressly understood and agreed that the LESSOR hereby agrees to indemnify to the extent
provided by applicable law, defend and hold harmless the LESSEE, only to the extent
permitted byapplicable law,itsofficers, employees, contractors, agents, customers, licensees,
invitees and/or visitors and any other person for or on whose behalf LESSOR is liable,
harmless from and against any andall claims, obligations, liabilities, costs, expenses
(including attorney's fees), losses, suits, fines, penalties or demands, made or sought by
or on behalf of any person, firms, corporation or government authority whomsoever,
based upon or arising out of any obligation, liability, loss, damage or expense, of whatever
nature or kind, contingent or otherwise, known or unknown, incurred under or imposed
by any provision of federal, state or local law or regulation, or common law, pertaining
to protection of the environment or human health and safety inor on the Leased Premises
prior to the Effective Date.
Notwithstanding any provision in this Lease Agreement to the contrary, it is
expressly understood and agreed that the LESSOR does not assume or agree to be
responsible for, and LESSEE hereby agrees to indemnify, defend and hold LESSOR,
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its officers, employees, contractors, agents, customers, licensees, invitees and/or visitors
and any other person for or on whose behalf LESSOR is liable, harmless from and against
any and all claims, obligations, liabilities, costs, expenses (including attorneys' fees),
losses, suits, fines, penalties, or demands, made or sought by or on behalf of any person, firm,
corporation or government authority whomsoever, based upon or arising out of the
handling, storage or disposal of Hazardous Substances by LESSEE, LESSEE's agent or
anyone onor about the Leased Premises by or atthe direction of LESSEE or with the
permission of LESSEE during the term of this Lease Agreement.
For purposes of this Lease Agreement, the term "Hazardous Substance" or
"Hazardous Substances" means that term as defined in Section 9601(14) of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), but it also includes the term
"Regulated Substance" as definedin Section 6991(2), and the term "Hazardous Waste" as
defined in Section 6903(5), of the Resource Conservation and Recovery Act of 1976,as
amended, 42 U.S.C. Section 6901,et seq. ("RCRA"), including all regulations issued
pursuant to any of the above statutes,as well as any other contaminant, oil, petroleum,
petroleum product or byproduct, radioactive material or byproduct and any unsafe, noxious,
toxic or hazardous substance or similar material regulated as a hazardous substance under
any applicable state, federal or local law, and any other applicable environmental, land use
or similar act, statute or regulation existing as of the date of this Lease Agreement or
thereafter.
The indemnifications provided by this Article shall specifically and reciprocally cover,
without limitation, costs incurredin connection with any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision or other third party.
The foregoing environmental indemnity provisions shall survive for a period of five (5)
years after the expiration or termination of this Lease Agreement and any renewals hereof.
4.3 Compliance with Laws andRegulations.
LESSEE's exerciseof such rights and/or privileges as may be extended it hereunder shall at all
times be in full compliance with all applicable laws, rules, and regulations, including safety
regulations, of the City of Denton, Texas, the State of Texas, the United States, and other
governmental authorities now or hereafter having jurisdiction thereof and/or any of their duly
empowered agencies and/or instrumentalities. A copy of all building permits, licenses, and
similar authorizing documents will be promptly provided tothe LESSOR.
4.4 Lessee Insurance.
For the term of this Lease Agreement and any renewal thereof, LESSEE will maintain,atits own
expense, the following insurance coverage:
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providing statutory benefits, and Employers' Liability
coverage with minimum limits of $1,000,000 per each occurrence; and
(b) Comprehensive General Liability insurance coverage with minimum limits of
$1,000,000 per occurrence; combined single limit, for bodily injury and
property damage. Coverage shall include contractual liability; and
(c) Automobile liability insurance coverage with minimum limits of $1,000,000 per
occurrence, combined single limit; and
(d) Casualty property insurance on the LESSEE constructed facilities on-site in an
appropriate amount reasonably determined by the agreement of LESSEE and
LESSOR, which amount shall take into account the construction costs of the
LESSEE's facilities and other relevant factors.
LESSEE shall provide LESSOR with a certificate evidencing the insurance required hereunder.
LESSOR and LESSEE shall endeavor to provide at least thirty (30) days prior written
notice of any modification, termination and/or cancellation of coverage. The insurance policies
described in (b) and (c) above shall name LESSOR asan additional insured party. All
insurance policies belonging to LESSEE shall be issued through companies that shall have a
minimum A.M. Best Company rating of "A," in addition to a minimum financial size category
of "VI" or "VII," or alternatively a Standard and Poor's rating of "BBB" or better.
4.6Termination.
This Lease Agreement shall terminate pursuant upon the expiration of its Term, or extension
of Term (if applicable), or upon the subsequent written agreement of LESSOR and LESSEE.
Upon termination, LESSEE shall be entitled to remove all of its personal property from the
building(s) and any equipment that LESSEE has installed inthe building, and shall thereafter
promptly quit and surrender the Leased Premises to LESSOR in broom-clean condition.
LESSEE shall additionally remove all feedstock, recyclables and recycling materials,
by-products, end- products, and chemical supplies from the Leased Premises, and shall
thereafter quit and surrender the Leased Premises to LESSOR; subject to the provisions of
Article 1.3 hereinabove.
4.7 Events of Default.
The following shall be "Events of Default" under this Lease Agreement and the terms "Event
of Default" or mean whenever they are used in this Lease Agreement, any
one or more of the following events:
(a) The insolvency, assignment for the benefit of creditors, adjudication as a
bankrupt of LESSEE or the appointment of a receiver for substantially all of
the LESSEE's property and/or LESSEE's interest in this Lease Agreement; or
(b) The issuance of execution against LESSEE's interest in this Lease Agreement
or any legal process which by operation of law would cause LESSEE's interest in this
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Lease Agreement to pass to any person other than LESSEE or its successor
assignee or sub-lessee; or
(c) The failure or refusal of LESSEE to pay or cause to be paid any lease
rental payment, charge and/or assessment hereunder or any installment thereof when
due and the continuance of such failure for a period of twenty (20) days after
written notice thereof has been sent by LESSOR to LESSEEat the address shown
herein for LESSEE; or
(d) The failure or refusal of LESSEE and/or LESSOR to perform any agreement,
covenant, condition, obligation and/or undertaking herein contained or required
by operation of law and/or to observe or comply with any of the terms provisions
or conditions of this Lease Agreement, and the continuance of such for a period of
thirty (30) days after written notice thereof has been sent by LESSOR to LESSEE
at the address shown herein for LESSEE; or
(e) The failure of LESSEE and/or LESSOR in the observance or performance of
any material term, obligation or covenant required to be performed by LESSEE
and/or LESSOR under this Lease Agreement or by operation of law, and the
continuance of such for a period of thirty (30) days after written notice thereof has
been sent byLESSOR to LESEE atthe address shown herein for LESSEE.
4.8 Holding Over.
No hold over shall be authorized or granted, after the expiration of the lease term.
4.9 Waiver of Breach of Default - Cumulative Remedies.
Waiver by any party of any breach or Default of this Lease Agreement shall not be deemed a
waiver of similar or other breaches or Defaults, nor shall the failure ofany party to take action by
reason of any such breach or Default deprive such party of the right to take action at any time
while such breach or Default continues. The rights and remedies created by this Lease
Agreement shall be cumulative and nonexclusive of those to which the parties may be entitled
pursuant to law. Right of exerciseof all such rights and remedies is hereby reserved. The use
andavailability of one remedy shall not be taken to exclude or waive the right to use of another.
In order to entitle any party to exercise any remedy reserved toitin this Lease Agreement,
it shall not be necessary togive any notice, other than such notice as is herein expressly required.
ARTICLE 5
MISCELLANEOUS
5.1 Quiet Enjoyment.
LESSOR covenants that during the term of this Lease Agreement and for so long as LESSEE
shall make timely payment of rentals due hereunder, and shall perform all covenants onits part
to be performed, LESSEE shall and may peaceably and quietly have, hold and enjoy the Leased
Premises.
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In the event of bankruptcy, insolvency, assignment for benefit of creditors, or foreclosure of any
mortgage or other encumbrances, by entry orby sale, LESSEE, ifitis not then indefault, shall
peaceably hold and enjoy the Leased Premises for the remainder of the unexpired term of the
Lease Agreement upon the same terms, covenants, and conditions as in this Lease Agreement.
5.2 Notices.
All notices and other communications required or permitted to be given byany provision of this
Agreement shall be in writing and mailed (certified or registered mail, postage prepaid, return
receipt requested) or sent by hand or overnight courier, and such notices shall also be sent by
facsimile transmission (with acknowledgment received), charges prepaid and addressed to the
intended recipient asfollows, or to such other address or number as may be specified from time
totimeby like notice to the Parties. A courtesy copy of such notice or other communication
shall also be sent electronically via e-mail to the e-mail addresses provided in the contact
information below; provided, however, that such e-mail copies will not constitute Notice as
defined in this Section 5.2:
(a) If to the LESSOR:
City of Denton, Texas
215 East McKinney Street
Denton, TX 76201
Attention: City Manager
Facsimile: 940-349-8596
If to LESSEE:
Genuine Parts Company dba NAPA Auto Parts
635 Freeport Parkway
Coppell, Texas 75019
Attention: Paul Schlebach, Division IBS Manager
Email: Paul_Schlebach@genpt.com
Any Party may from time totime specify a different address for notices by like notice to
the other Party. All notices and other communications given in accordance with the
provisions of this Lease Agreement shall be effective upon receipt of the same.
5.3Substitution of Performance by Lessor.
If LESSEE shall fail to do anything required to be done byit under the terms of this Lease
Agreement, except to pay rent and other charges, LESSOR may, after thirty (30) days
written notice to LESSEE, atLESSOR's sole option, do suchact or thing on behalfof
LESSEE, andupon notification of the cost thereof to LESSOR, LESSEE shall promptly pay
to LESSOR the amount of that cost. In case of emergency, LESSOR may perform, but is not
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obligated to perform, any act or do anything reasonably necessary on behalf of LESSEE
and upon notification of the cost thereof to LESSEE, LESSEEshall pay said cost to LESSOR
within thirty (30)days from the date of LESSOR'S written claim to LESSEE.
5.4 Eminent Domain.
If all or a portion of the Leased Premises or all or any portion of property
comprising the Leased Property shall be taken or sold in any proceeding by public authorities, by
means of condemnation, expropriation, appropriation or otherwise be acquired for public or
quasi-public purposes, there shall be an equitable abatement or refund of the rental paid by
LESSEE under Article 3.1 above from any date of award to LESSOR proportionate to the
amount taken. Nothing herein shall affect or diminish LESSEE's right toseek compensation for
any portion of the Leased Premises taken and LESSEE shall be entitled to all such compensation
for its provable loss or damage.
In the event the taking of the Leased Premises or all or a part of property
comprising the Leased Premises is total, this Lease Agreement shall terminate, and LESSEE
shall be released from all obligations hereunder; except for any sums of money owed to
LESSOR at the date of termination of this lease, which amounts shall be paid to LESSOR within
thirty (30) days.
In the event the taking of the Leased Premises or LESSOR's other property comprising the
Landfill is less than total, then LESSEE shall have the option toterminate this Lease Agreement
if continuation of its operations on the Lease Premises is substantially impaired and
economically impractical.
5.5Substitution of Performance by Lessee.
If LESSOR shall fail to do anything required to be done byit under the terms of this Lease
Agreement, LESSEE may, after sixty (60) days written notice to LESSOR, at LESSEE's sole
option, do suchact or thing on behalfof LESSOR, and uponnotification of the reasonablecost
thereof to LESSOR, may deduct said amount from any amount owedby LESSEEto LESSOR.
In case of emergency, LESSEE may perform any act or do anything reasonably necessary on
behalf of LESSOR and upon notification of the cost thereof to LESSOR, may deduct said
amount from the amount of rental then owedby LESSEE to LESSOR. Ifnoamount is presently
owed by LESSEEto LESSOR, then LESSOR shall pay such amount to LESSEE ondemand.
5.6 Recordation.
Neither LESSOR nor LESSEE shall record this Lease Agreement without the prior written
consent of the other party.
5.7 Entire Agreement.
This Lease Agreement embodies the entire agreement between the parties with respect to the
leasing and use of the Leased Premises. There are no representations, terms, conditions,
covenants or agreements between the parties which are not mentioned or contained herein. This
Lease Agreement shall completely and fully supersede all other prior agreements both written
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and oral, between the parties pertaining to the Leased Premises. No party to any such prior
agreement hereafter will have any rights thereunder, but shall look solely to this
Lease Agreement for definition and determination of its rights, liabilities, or responsibilities
relating to the aforesaid matters set forth herein.
5.8Captions.
The article and the subsection headings and captions contained herein are included
for convenience only and shall not be considered a part hereof or affect in any
manner the construction or interpretation of this Lease Agreement.
5.9Severability.
The parties agree that ifit should ever be held by a court of competent jurisdiction that any
one or more articles, subsections, clauses or provisions of this Lease Agreement are
invalid or ineffective for any reason, any such article, subsection, clause or provision
shall be deemed separate fromthe remainder of this Lease Agreement and shall not affect the
validity and enforceability of suchremainder.
5.10 Successors and Assigns.
The covenants, terms, conditions and obligations set forth and contained in this Lease
Agreement shall be binding upon and inure to the benefit of LESSOR and LESSEE and their
respective successors and assigns.
5.11 Disputes and GoverningLaw.
This Lease Agreement shall be governed by and construed solely in accordance with the laws
of the State of Texas. Exclusive venue for any claim or cause of action under this Agreement
shall be,as the case may be, either in the District Courts of Denton County, Texas, or the
federal district courts of the Eastern District of Texas, Plano or Sherman Division.
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IN WITNESS WHEREOF, this Lease Agreement has been executed by the duly
authorized City Manager of LESSOR; and by the duly-authorized officer of LESSEE,
in multiple counterparts, each of which, for all purposes, shall be deemed an original and
all of whichshall evidence but one agreement.
LESSEE
BY: _______________________________
AUTHORIZED SIGNATURE
Date: _______________________
Name: ______________________
Title: _______________________
____________________________
PHONE NUMBER
____________________________
EMAIL ADDRESS
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY:
GEORGE C. CAMPBELL, CITY MANAGER
BY: __________________________________ Date:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: __________________________________
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Contract #5641
Exhibit F
Request for Proposal (RFP) No. 5641
On File at the Office of the Purchasing Agent
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Contract #5641
Exhibit G
Conflict of Interest Questionnaire
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Contract #5641
Exhibit H
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RFP5641PricingSheetforFleetVehicleandEquipmentPartsSupportServices
Therespondentshallcompletethefollowingsection,whichdirectlycorrespondstothespecifications.
Thecontractorshallnotmakechangestothisformat.
SECTIONAPASTNONSTOCKPURCHASEPRICING
The City has historically purchased parts from the below listed suppliers. In the previous 12 months,
there were in excess of 4,000 parts issued that carried a value of 1.8 millon dollars. The awarded
contractor is expected to obtain preferential pricing on behalf of the City, and provide a "lowest landed
cost". The awarded contractor shall provide a percentage above the lowest landed cost, or indicate
that these parts will be sold to the City at the supplier's cost.
Third Party Pricing to % above Lowest
RespondentLanded Cost
ItemNON-STOCK - Vendor
(Supplier Cost)(City's Cost)
665 Lowest Landed Cost0.0%
AkronBrass
666 Lowest Landed Cost0.0%
AlamoIndustria
667 Lowest Landed Cost0.0%
ALLIANCE
668 Lowest Landed Cost0.0%
AltecIndustrie
669 Lowest Landed Cost0.0%
ATLASCOPCO
670 Lowest Landed Cost0.0%
AUTOPARTSTORE
671 Lowest Landed Cost0.0%
BanditChipper
672 Lowest Landed Cost0.0%
Batteries
673 Lowest Landed Cost0.0%
BOBCAT
674 Lowest Landed Cost0.0%
BROCE
675 Lowest Landed Cost0.0%
BUTTONKIT
676 Lowest Landed Cost0.0%
Caseequipment
677 Lowest Landed Cost0.0%
caterpiller
678 Lowest Landed Cost0.0%
CHELESAPTO
679 Lowest Landed Cost0.0%
CHRYSLER
680 Lowest Landed Cost0.0%
CLASSONE
681 Lowest Landed Cost0.0%
CONSTRUCTION
682 Lowest Landed Cost0.0%
Cummins
683 Lowest Landed Cost0.0%
DADEEMFG
684 Lowest Landed Cost0.0%
DETROITCATCUM
685 Lowest Landed Cost0.0%
DIALLUBRICANTS
686 Lowest Landed Cost0.0%
DITCHWITCH
687 Lowest Landed Cost0.0%
DOOSAN
688 Lowest Landed Cost0.0%
EmergencyLaw
689 Lowest Landed Cost0.0%
EONEFIRETRUCK
690 Lowest Landed Cost0.0%
FEDERALSIGNAL
691 Lowest Landed Cost0.0%
FORD
692 Lowest Landed Cost0.0%
FRAZER
693 Lowest Landed Cost0.0%
FREIGHTLINER
694 Lowest Landed Cost0.0%
GATESAUTOMOTIV
695 Lowest Landed Cost0.0%
GeneralMotors
696 Lowest Landed Cost0.0%
GRADALL
697 Lowest Landed Cost0.0%
GRAINGER
698 Lowest Landed Cost0.0%
GRASSHOPPER
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Third Party Pricing to % above Lowest
RespondentLanded Cost
ItemNON-STOCK - Vendor (Supplier Cost)(City's Cost)
699 Lowest Landed Cost0.0%
GROVECRANE
700 Lowest Landed Cost0.0%
HALE
701 Lowest Landed Cost0.0%
HARDWARE
702 Lowest Landed Cost0.0%
HAVIS
703 Lowest Landed Cost0.0%
HEATING&COOLI
704 Lowest Landed Cost0.0%
heavydutypart
705 Lowest Landed Cost0.0%
HEIL
706 Lowest Landed Cost0.0%
HUSQVARNA
707 Lowest Landed Cost0.0%
HYDRAULICS
708 Lowest Landed Cost0.0%
INLANDTRKPART
709 Lowest Landed Cost0.0%
INTERSTATETRAILER
710 Lowest Landed Cost0.0%
ISUZU
711 Lowest Landed Cost0.0%
JDEEREYELLOW
712 Lowest Landed Cost0.0%
JCBVIBROMAX
713 Lowest Landed Cost0.0%
JDGREEN
714 Lowest Landed Cost0.0%
JottoDesk
715 Lowest Landed Cost0.0%
Kawasaki
716 Lowest Landed Cost0.0%
KENWORTHTRUCKS
717 Lowest Landed Cost0.0%
KNAPHEIDEEQUIP
718 Lowest Landed Cost0.0%
KohlerEngine
719 Lowest Landed Cost0.0%
KOMATSU
720 Lowest Landed Cost0.0%
Kubotaparts
721 Lowest Landed Cost0.0%
KUSSMAUL
722 Lowest Landed Cost0.0%
L3MobleVision
723 Lowest Landed Cost0.0%
Labrie/Wittke
724 Lowest Landed Cost0.0%
LUBERFINER
725 Lowest Landed Cost0.0%
Mack
726 Lowest Landed Cost0.0%
Mcneilus
727 Lowest Landed Cost0.0%
MOTIONINDUST
728 Lowest Landed Cost0.0%
MountainTarp
729 Lowest Landed Cost0.0%
NAVISTAR
730 Lowest Landed Cost0.0%
Niehoff
731 Lowest Landed Cost0.0%
Onangenerator
732 Lowest Landed Cost0.0%
OXBodis
733 Lowest Landed Cost0.0%
PERKINS
734 Lowest Landed Cost0.0%
PierceFireTru
735 Lowest Landed Cost0.0%
PioneerTarp
736 Lowest Landed Cost0.0%
POLARIS
737 Lowest Landed Cost0.0%
PROGARD
738 Lowest Landed Cost0.0%
PROTECTASEAL
739 Lowest Landed Cost0.0%
PULLTARPS
740 Lowest Landed Cost0.0%
RHINOEQUIP
741 Lowest Landed Cost0.0%
SEWEREQUIP
742 Lowest Landed Cost0.0%
STERLING
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Third Party Pricing to % above Lowest
RespondentLanded Cost
ItemNON-STOCK - Vendor (Supplier Cost)(City's Cost)
743 Lowest Landed Cost0.0%
STIHL
744 Lowest Landed Cost0.0%
Streamlight
745 Lowest Landed Cost0.0%
SUPPLYCOMPANY
746 Lowest Landed Cost0.0%
TEREXUTILITI
747 Lowest Landed Cost0.0%
TigerMachinery
748 Lowest Landed Cost0.0%
TigerMower
749 Lowest Landed Cost0.0%
TOOL/EQUIPMENT
750 Lowest Landed Cost0.0%
TORO
751 Lowest Landed Cost0.0%
TRAILERS
752 Lowest Landed Cost0.0%
Tymco
753 Lowest Landed Cost0.0%
Vermeer
754 Lowest Landed Cost0.0%
VOLVOPARTS
755 Lowest Landed Cost0.0%
WACKERPACKER
756 Lowest Landed Cost0.0%
WarrenInc.
757 Lowest Landed Cost0.0%
WATEROUS
758 Lowest Landed Cost0.0%
weldingsupplie
759 Lowest Landed Cost0.0%
WHELEN
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
RFP5641PricingSheetforFleetVehicleandEquipmentPartsSupportServices
Therespondentshallcompletethefollowingsection,whichdirectlycorrespondstothespecifications.The
contractorshallnotmakechangestothisformat.
SECTIONBOPERATIONALEXPENSESPRICING
TotalCosttobe
Approximate
Hourly Rate of
Description
ITEM
Hours per BilledtoCityper
Pay
Billing Period
BillingPeriod
Staffing and Support Expenses:
760GrossPayforStoreManager
173$$4,964.87
StoreManagerEmployeeBenefits:Insurance,FICA,UCI,Healthcare,Worker's
761
$1,878.00
Compensation,etc.
762GrossPayforCounterPersonNo.1
173$$3,706.20
CounterPersonNo.1EmployeeBenefits:Insurance,FICA,UCI,Healthcare,Worker's
763
$1,442.34
Compensation,etc.
764GrossPayforCounterPersonNo.2
173$15.73$2,726.53
CounterPersonNo.2EmployeeBenefits:Insurance,FICA,UCI,Healthcare,Worker's
765
$1,136.00
Compensation,etc.
766GrossPayforDeliveryDriver
87$11.48$1,002.59
DeliveryDriverEmployeeBenefits:Insurance,FICA,UCI,Healthcare,Worker's
767
$402.53
Compensation,etc.
768 TOTALPERSONNELEXPENSES
$0.00$17,259.00
769
ThirdPartyTireReplacementandRepairHandlingFee$250.00
770InsuranceforDeliveryVehicle
$0.00
771VehicleExpenseFuelandMaintenance
$58.00
772MonthlyDepreciationofVehicles,includingannualregistration/inspection
$0.00
773MonthlyDepreciationofStockroomRefurbishmentCostsand/orEquipment
$0.00
774MonthyDepreciationofSoftware/IntegrationCosts
$0.00
775FreightandPostage
$0.00
776Insurance:GeneralliabilityInsurance,LiabilityforAssets,InventoryProperty
$1,277.00
777OfficeSupplies
$81.71
778InventoryLosses:RestockingFees,Theft,etc.
$0.00
779Communications:CellularPhones(forbusinessuseonly),WANaccessfees
$276.00
780Computers(Leaseordepreciation)andSoftwareSupportfees
$687.00
TOTALMISCELLANEOUSEXPENSES
$2,629.71
TOTALOPERATINGEXPENSES
$19,888.71
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Contract #5641
Exhibit I
Sample Reports
Contract # 5641Service Agreement Page 76of 76
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nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn
eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
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iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii
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CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
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mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
DocuSign Envelope ID: 0C699D04-68A7-4E48-A03C-6E9E4E176D42
Exhibit
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after
the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
Name of vendor who has a business relationship with local governmental entity.
1
2
Check this box if you are filing an update to a previously filed questionnaire.
th
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7 business
day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3
Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
Certificate Of Completion
Envelope Id: 0C699D0468A74E48A03C6E9E4E176D42Status: Completed
Subject: City Council Docusign Item - RFP 5641
Source Envelope:
Document Pages: 106Signatures: 9Envelope Originator:
Certificate Pages: 6Initials: 1Cindy Alonzo
AutoNav: EnabledCynthia.Alonzo@cityofdenton.com
EnvelopeId Stamping: EnabledIP Address: 129.120.6.150
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
Record Tracking
Status: OriginalHolder: Cindy AlonzoLocation: DocuSign
6/13/2016 12:00:53 PM Cynthia.Alonzo@cityofdenton.com
Signer EventsSignatureTimestamp
Cindy AlonzoSent: 6/13/2016 12:22:05 PM
Completed
cynthia.alonzo@cityofdenton.comViewed: 6/13/2016 12:22:20 PM
BuyerSigned: 6/13/2016 12:24:23 PM
Using IP Address: 129.120.6.150
City of Denton
Security Level: Email, Account Authentication
(Optional)
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Not Offered via DocuSign
ID:
Stu KamburySent: 6/13/2016 12:24:27 PM
Stu_kambury@genpt.comViewed: 6/13/2016 12:42:06 PM
Division VPSigned: 6/13/2016 12:43:46 PM
Genuine parts company
Using IP Address: 199.96.225.189
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(Optional)
Electronic Record and Signature Disclosure:
Accepted: 1/28/2016 11:33:02 AM
ID: d5afb591-797f-4f83-a648-f9226af3fff8
John KnightSent: 6/13/2016 12:43:53 PM
john.knight@cityofdenton.comViewed: 6/13/2016 2:03:06 PM
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City of Denton
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Julia WinkleySent: 6/13/2016 2:03:30 PM
Completed
julia.winkley@cityofdenton.comViewed: 6/14/2016 5:37:30 AM
Contracts Administration SupervisorSigned: 6/22/2016 7:11:35 AM
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City of Denton
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Signer EventsSignatureTimestamp
George C. CampbellSent: 6/22/2016 7:11:41 AM
george.campbell@cityofdenton.comViewed: 6/22/2016 1:51:54 PM
City ManagerSigned: 6/22/2016 1:52:16 PM
City of Denton
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ID:
Jennifer WaltersSent: 6/22/2016 1:52:21 PM
jennifer.walters@cityofdenton.comViewed: 6/23/2016 7:06:07 AM
City SecretarySigned: 6/23/2016 7:06:19 AM
City of Denton
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In Person Signer EventsSignatureTimestamp
Editor Delivery EventsStatusTimestamp
Agent Delivery EventsStatusTimestamp
Intermediary Delivery EventsStatusTimestamp
Certified Delivery EventsStatusTimestamp
Carbon Copy EventsStatusTimestamp
Michael DavisSent: 6/13/2016 12:24:27 PM
michael_davis@genpt.com
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(Optional)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Julia WinkleySent: 6/13/2016 12:43:51 PM
julia.winkley@cityofdenton.comViewed: 6/13/2016 12:53:14 PM
Contracts Administration Supervisor
City of Denton
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Sherri ThurmanSent: 6/13/2016 12:43:51 PM
sherri.thurman@cityofdenton.com
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Jane RichardsonSent: 6/22/2016 7:11:39 AM
jane.richardson@cityofdenton.comViewed: 6/22/2016 7:13:05 AM
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(Optional)
Carbon Copy EventsStatusTimestamp
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ID:
Robin FoxSent: 6/22/2016 7:11:39 AM
Robin.fox@cityofdenton.com
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(Optional)
Electronic Record and Signature Disclosure:
Accepted: 10/9/2015 11:39:51 AM
ID: 04463961-03db-4c4d-9228-d660d6146ed6
Jennifer BridgesSent: 6/23/2016 7:06:24 AM
jennifer.bridges@cityofdenton.comViewed: 6/23/2016 10:41:15 AM
Procurement Assistant
City of Denton
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(Optional)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jane RichardsonSent: 6/23/2016 7:06:25 AM
jane.richardson@cityofdenton.com
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(Optional)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Terry KaderSent: 6/23/2016 7:06:27 AM
Terry.Kader@cityofdenton.com
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Notary EventsTimestamp
Envelope Summary EventsStatusTimestamps
Envelope SentHashed/Encrypted6/23/2016 7:06:27 AM
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Signing CompleteSecurity Checked6/23/2016 7:06:27 AM
CompletedSecurity Checked6/23/2016 7:06:27 AM
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-335,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceapprovingapipelinecrossingcontractbyandbetweentheCityofDenton,
TexasandtheKansasCitySouthernRailwayCompanyrelatingtothelocationofaCitywaterpipelinewithin
therailroadright-of-way,locatedattherailroad’sintersectionwithSouthBonnieBraeatMilePostD103.24
AllianceSubdivision,withintheCountyandCityofDenton,Texas;authorizingtheCityManagertoexecute
theAgreement;authorizingtheexpenditureoffundstherefore;andprovidingandeffectivedate.(North-South
42-inch Water Transmission Main project - Phase 2) The Public Utilities Board recommends approval (5-0).
City of DentonPage 1 of 1Printed on 5/3/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Capital Projects
CM/ DCM/ ACM: Mario Canizares
DATE: May 8, 2018
SUBJECT
Consider adoption of an ordinance approving a pipeline crossing contract by and between the City of
Denton, Texas and the Kansas City Southern Railway Company relating to the location of a City water
pipeline within the railroad right-of-way, located at the railroad’s intersection with South Bonnie Brae at
Mile Post D103.24 Alliance Subdivision, within the County and City of Denton, Texas; authorizing the
City Manager to execute the Agreement; authorizing the expenditure of funds therefore; and providing and
effective date. (North-South 42-inch Water Transmission Main project - Phase 2) The Public Utilities Board
recommends approval (5-0).
BACKGROUND
The North South Water Main Phase 2 Project is a part of the City’s Water Master Plan and will extend
approximately 10,000 linear feet of 36 inch and 42 inch water transmission main along Bonnie Brae from
Roselawn to just north of IH 35E. As a component of this project, it is necessary to seek formal
authorization from the Kansas City Southern Railway Company to cross their right-of-way with the 42
inch transmission main.
OPTIONS
1.Approve the proposed Ordinance.
2.Decline to approve the proposed Ordinance.
3.Table for future consideration.
RECOMMENDATION
Staff recommends approval of the Ordinance.
ESTIMATED SCHEDULE OF PROJECT
Project is slated to be advertised for bids in May 2018.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
April 23, 2018 - The Public Utilities Board recommends approval (5-0).
FISCAL INFORMATION
There is a one-time payment fee of $9,375.00 to Kansas City Southern Railway Company. Funding for
the North South Water Main Phase 2 Project will come from existing bond funds. The Water Department
is funding this project and the project account number is 630282523.1360.21100.
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
1.Agenda Information Sheet
2.Location Map
3.Site Map
4.Ordinance and Agreement
Respectfully submitted:
Todd Estes, P.E.
Director Capital Projects / City Engineer
Prepared by:
Lee Perry, P.E.
Senior Engineer
Capital Projects
Bonnie Brae Proposed Water Pipe Site Map
CITY OF DENTON
Proposed Water Pipe 42 inch
Proposed Bore Pit 40 ft. x 20 ft.
µ
Kansas City Southern Rail
0204080
Feet
Bonnie Brae Proposed Water Pipe Location Map
CITY OF DENTON
HICKORY STREET
WILLOWWOOD STREET
ROSELAWN DRIVE
Proposed Water Pipe 42 inch
Proposed Bore Pit 40 ft. x 20 ft.
µ
Kansas City Southern Rail
05001,0002,000
Feet
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-549,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,
authorizingtheCityManagertoexecuteaProfessionalServicesAgreementwithTeagueNallandPerkins,Inc.,
forengineeringandarchitectservices,fortheinvestigationofexistingpavementfailuresonselectedconcrete
streetsassetforthinthecontract;providingfortheexpenditureoffundstherefor;andprovidinganeffective
date(RFQ6590-001-ProfessionalServicesAgreementawardedtoTeagueNallandPerkins,Inc.,inthenot-to-
exceed amount of $173,400).
City of DentonPage 1 of 1Printed on 5/3/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
______________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal
corporation, authorizing the City Manager to execute a Professional Services Agreement with
Teague Nall and Perkins, Inc., for engineering and architect services, for the investigation of
existing pavement failures on selected concrete streetsas set forth in the contract; providing for
the expenditure of funds therefor;and providing an effective date(RFQ 6590-001–Professional
Services Agreement awarded to Teague Nall and Perkins,Inc.,in the not-to-exceedamountof
$173,400).
RFQ INFORMATION
This project consists of an investigation of existing pavement failures on selected concrete streets
throughout Denton as depicted on themapprovided by Streets. Theattachedmap depicts
approximately 65 locationsfor consideration. Additionally, approximately twelve (12)bores will
be taken in new subdivisions just to see if possible problems are occurring there. The project will
includeaninvestigation of record drawings, review of inspection reports and testing reports in
the failure areas, meeting with city staff that haveknowledge of the failing areas, geotechnical
investigations on each of the failing streets, and development of the findings report to City staff.
The proposed engineeringfeeof$173,400for the professional services on this project includes,
identifying the causes of the concrete pavement failures, geotechnical investigation, and
developmentof construction standards to prevent failures in the futurephase.
Request for Qualifications (RFQ) forprofessional engineering services were solicited using the
City’s formal solicitation process. City Council approved a pre-qualified list of engineering firms
on March 6, 2018 (Ordinance 2018-331).
Teague Nall and Perkins, Inc. (TNP), a locally owned firm, has provided various engineering
services to the City over the past several years. The firm’sexpertise, responsiveness, and
knowledge of the City’s various subgrade conditionsbest aligns with Streets operational and
regulatory needs. The deliverables provided by TNP for this project will allow City staff to
solicit an outside contractor to perform the reconstruction project.
PRIOR ACTION/REVIEW
On March 6, 2018, Council approved RFQ 6590 for a prequalified list of professional
engineering firms(Ordinance 2018-331).
RECOMMENDATION
Award a contract with TNP,for engineering services for the Street Department in the not-to-
exceedamountof $173,400.
PRINCIPAL PLACE OF BUSINESS
Teague Nall andPerkins, Inc.
Denton, TX
ESTIMATED SCHEDULE OF PROJECT
This project will be started upon approval with completionin approximately 26 weeks.
FISCAL INFORMATION
These services will be funded from the Streets Operation and Maintenance account 285801.7860.
Requisition #137909has been entered in thePurchasing software system in the amount of
$173,400.This project is unbudgeted, funds were transferred from the operations and
maintenance account 285801.6516 to fund this project.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road map that will help the City achieve its
vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational
Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly
Community; and Sustainability and 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:2.1 Optimize resources to improve quality of City Roadways
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Mapand Locations
Exhibit 2a: Locations
Exhibit 3: Ordinance
Exhibit 4: Contract
Respectfully submitted:
Karen Smith, 940-349-7100
Purchasing Manager
For information concerning this acquisition, contact:Todd Estes, 940-349-8917
Legend
Concrete Roadways
Highly erodible land
Potentially highly erodible land
I
Not highly erodible land
Centerline
00.250.51
Miles
Date: 10/26/2017
BEALL ST
HERCULES LN
X
X
X
X
X
X
X
BAUER DR
CORONADO DR
HERITAGE LN
X
X
MISTYWOOD LN
X
BRANDYWINE ST
X
PROMINENCE PKWY
RALEIGH PATH
E THIRD ST
LATTIMORE ST
SECOND ST
POST OAK CT
OAK TREE DR
FIRST ST
X
RUSSELL NEWMAN BLVD
ULAND STMARKET ST
HAYNES ST
E OAK ST
E HICKORY ST
W WALNUT ST
W MULBERRY ST
W SYCAMORE STE SYCAMORE ST
W SYCAMORE ST
W PRAIRIE STE PRAIRIE ST
UNION CIR
MAPLE ST
LUCY
WILSHIRE ST
FANNIN ST
PARK LN
MARGIE ST
ALEGRE VISTA DR
OAKWOOD DR
X
X
RICH ST
X
X
SHENANDOAH TRAIL
X
X
X
X
X
XX
X
X
X
X
X
X
X
X
X
X
X
X
X
XX
OAKHURST ST
PUBLIC ALLEY
X
X
X
X
XX
EL CIELITO ST
X
X
X
X
X
X
X
X
X
X
X
SKYSAIL LN
X
MONTEVIDEO CT
X
X
X
X
X
BUTLER DR
X
WALTON DR
X
CREEKDALE DR
SAN LORENZO DR
X
X
ALLRED RD
X
X
X
X
HICKORY CREEK RD
HICKORY CREEK RD
MEADOW OAK DR
X
X
X
ACORN BEND
X
X
PRIVATE DR
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DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
FILE 6590-001
SECTION 1
EMPLOYMENT OF DESIGN PROFESSIONAL
SECTION 2
COMPENSATION
2.1 BASIC SERVICES
2.1.1
2.2 ADDITIONAL SERVICES
2.2.1
2.3 REIMBURSABLE EXPENSES
SECTION 3
INVOICES
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
Invoices
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.
SECTION 4
CONTRACT TERM
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
SECTION 5
ENTIRE AGREEMENT
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
1.1
1.2
ARTICLE 2 SCOPE OF BASIC SERVICES
2.1 BASIC SERVICES DEFINED
2.2 SCHEMATIC DESIGN PHASE
2.2.1
2.2.2
2.2.3
2.2.4
2.2.5
2.3 DESIGN DEVELOPMENT PHASE
2.3.1
2.3.2
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1
2.4.2
2.4.3
2.4.4
2.5 CONSTRUCTION CONTRACT PROCUREMENT
2.5.1
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2.5.2
2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1
2.6.2
2.6.3
2.6.4
2.6.5
2.6.6
2.6.7
2.6.8
2.6.9
2.6.10
2.6.11
2.6.12
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2.6.13
2.6.14
2.6.15
2.6.16
2.6.17
2.6.18
2.6.19
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.1
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1
3.2.2
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1
3.3.2
3.3.3
3.3.4
3.3.5
3.3.6
3.3.7
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
3.3.8
3.3.9
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1
3.4.2
3.4.3
3.4.4
3.4.5
3.4.6
3.4.7
3.4.8
3.4.9
3.4.10
3.4.12
3.4.13
3.4.14
3.4.15
3.4.16
3.4.17
3.4.18
ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1
4.2
4.3
4.4
4.5
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4.6
4.6.1
4.7
4.8
4.9
4.10
4.11
ARTICLE 5 CONSTRUCTION COST
5.1 CONSTRUCTION COST DEFINED
5.1.1
5.1.2
5.1.3
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1
5.2.2
5.2.3
ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS
6.1
6.2
ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT
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7.1
7.2
7.3
7.4
7.5
7.6
ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL
8.1 DIRECT PERSONNEL EXPENSE
8.1.1
8.2 REIMBURSABLE EXPENSES
8.2.1
8.2.1.1
8.2.1.2
8.2.1.3
8.2.1.4
8.2.1.5
8.2.1.6
8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1
8.3.2
8.3.3
8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
8.4.1
8.5 PAYMENTS WITHHELD
8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS
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ARTICLE 9 INDEMNITY
9.1
9.2
ARTICLE 10INSURANCE
10.1
10.2
10.3
10.4 .
10.5
ARTICLE 11 MISCELLANEOUS PROVISIONS
11.1
11.2
11.3
11.4
11.5
11.6
11.7
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11.8
11.9
11.10
11.11
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House Bill 89 - Government Code 2270
VERIFICATION
an adult over the age of eighteen (18) years of age, verify that the
company named-above, 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 the contract the above-named
Company, business or individual 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.
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
Senate Bill 252 -Government Code 2252
CERTIFICATION
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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
See
Name of vendor who has a business relationship with local governmental entity.
1
2
Check this box if you are filing an update to a previously filed questionnaire.
Name of local government officer about whom the information in this section is being disclosed.
3
4
I have no Conflict of Interest to disclose.
5
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2018 Pavement Failure Study
TEAGUE NALL AND PERKINS, INC.
Hourly Billing Rates by Employee Type
Effective March 1, 2018 to March 31, 2019
Engineering /Landscape Architecture/ROW Hourly Billing Rate
Principal $230
Team Leader $210
Senior Project Manager $200
Project Manager $170
Senior Engineer $220
Project Engineer $150
Engineer III/IV $120
Engineer I/II $100
Landscape Architect / Planner $125
Landscape Designer $100
Senior Designer $135
Designer $120
Senior CAD Technician $110
CAD Technician $90
IT Consultant $150
Clerical $60
Construction Inspector II $90
Construction Inspector III $105
Senior Construction Inspector $120
Construction Superintendent $170
ROW Manager $150
Senior ROW Agent $130
ROW Agent $110
Relocation Agent $120
Senior Utility Coordinator $130
Utility Coordinator $120
Intern $60
Surveying
Survey Manager $210
Registered Professional Land Surveyor (RPLS) $170
Field Coordinator $120
S.I.T. or Senior Survey Technician $110
Survey Technician $95
1-Person Field Crew w/Equipment** $125
2-Person Field Crew w/Equipment** $160
3-Person Field Crew w/Equipment** $180
4-Person Field Crew w/Equipment** $200
Flagger $40
Abstractor (Property Deed Research) $85
Subsurface Utility Engineering (SUE)
SUE Project Manager $185
SUE Engineer $160
Sr. Utility Location Specialist $100
Utility Location Specialist $85
1-Person Designator Crew w/Equipment*** $120
2-Person Designator Crew w/Equipment*** $145
2-Person Vac Excavator Crew w/Equip (Exposing Utility Only) $250 (4 hr. min.)
2-Person Vac Excavator Crew w/Equip for QL-A **** $450 (4 hr. min.)
Core Drill (equipment only) $750 per day
All subcontracted and outsourced services shall be billed at rates comparable to TNPs billing rates above or cost times a multiplier of 1.10.
** Survey equipment may include truck, ATV, Robotic Total Station, GPS Units and Digital Level.
*** I ncludes crew labor, vehicle costs, and field supplies.
**** Rate applies to Quality Level A (QL-A) test holes on utilities that were designated by TNP as QL-B.
1
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2018 Pavement Failure Study
TEAGUE NALL AND PERKINS, INC.
Hourly Billing Rates by Employee Type
Effective March 1, 2018 to March 31, 2019*
Direct Cost Reimbursables
Photocopies: $0.154/sf letter, legal and 11” x 17” size bond paper, B&W
$0.7701/sf letter, legal and 11” x 17” bond paper, color
Prints: $0.154/sf letter, legal and 11” x 17” bond paper, B&W
$0.7701/sf letter, legal and 11” x 17” bond paper, color
Plots: $0.154/sf letter, legal and 11” x 17” bond paper, B&W
$0.7701/sf letter, legal and 11” x 17” bond paper, color
$0.50/sf 22” x 34” and larger bond paper or vellum, B&W
$1.00/sf 22” x 34” and larger mylar or acetate, B&W
Mileage $0.545/mile
Plans on CD $20/each
2
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ATTACHMENT “3”
ITEMIZED SCOPE OF SERVICES
2018 Pavement Failure Study
PROJECT DESCRIPTION
This project consists of an investigation of existing pavement failures on selected concrete
streets throughout Denton, as depicted on a map provided by the City of Denton Street
Department. The map depicts approximately 65 locations for consideration. Additionally,
approximately 12 bores will be taken in new subdivisions just to see if possible problems are
occurring there. The project will include investigation of record drawings, review of any
available inspection reports and testing reports in the failure areas, meetings with city staff with
knowledge of the failure areas, geotechnical investigations on each of the above named
streets, and development of a findings report for delivery to City staff.
The objectives of the assignment are threefold:
1. Identify the causes of the concrete pavement failures. From initial observations, many of
the failures appear to follow the classic pattern of failures in utility trenches, as identified
in a 2006 report prepared for the City by the Design Professional. However, there are
other failures that may not be similar in cause.
2. Make recommendations for repairs of the failed areas.
3. Make recommendations for measures that would prevent new projects from having the
same type of failures. This could include changes in design criteria, inspection
procedures, or other solutions.
GENERAL
The following assumptions were used by the Design Professional for the preparation of the
scope of Basic Services for this project:
1. The project will be reviewed and evaluated in accordance with the City of Denton
Engineering Design Criteria and Construction Standards Manual and the North Central
Texas Council of Governments Standard Specifications for Public Works Construction.
2. Record drawings will be provided by the City of Denton (where available) that reflect
installed conditions for the streets, utilities and other public improvements that are
impacted by these pavement failures.
3. The City of Denton will provide access to City records including testing reports for the
subdivisions, City of Denton inspection reports, ground penetrating radar information,
additional record drawings as needed, and Design Criteria/Construction Standards.
4. City of Denton to provide documentation of weather patterns from construction period up
to current date. These documents will be used to establish the impact of moisture
conditions in existing ground and during construction process.
Attachment 3 Page 1 of 3
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5. Geotechnical services will be provided under this agreement by a subconsultant, GEE
Consultants, Inc. The subconsultant agreement with GEE Consultants is attached as
Attachment D. Geotechnical services will be provided on a time and materials basis.
The geotechnical services to be provided will be as outlined in that subconsultant
agreement, and will include:
a) Boring logs of cores at the selected locations
b) Results of laboratory testing that will indicate sol classifications, heave potential and
strength/compaction characteristics
c) Coring data that indicates the thickness and strength of the concrete pavement,
along with a limited evaluation of reinforcing steel used in the pavement
d) An engineering report that outlines site observations and comments, identifies types
of failures and factors contributing to the failures, and recommendations for reducing
future failures
6. The Design Professional will meet with the City of Denton Staff during the course of the
project as outlined below.
a) Project Kickoff Meeting after Notice to Proceed has been given.
b) Review meeting to discuss research and geotechnical findings with City staff.
c) Presentation of Draft Report prior to final submittal to City of Denton.
FIELD INVESTIGATION
1.The Design Professional’s engineering staff will complete a visual inspection of the
failure conditions for each of the subject streets. This will include digital pictures and field
observations. Since not all streets will be cored, the Design Professional will
recommend locations for the geotechncial investigations. The Design Professional will
compare the failures to other streets in the area to attempt to establish differences in
construction or public improvement design that may have resulted in the failures.
RESEARCH PHASE
1. Review of Record Drawings/Inspection Reports/Testing Reports, soils data, the
geotechnical investigation results, surrounding conditions and weather conditions. The
Design Professional’s staff will also meet with the City staff to discuss construction and
inspection procedures prevalent during the construction of these streets.
REPORT
1. The Design Professional will develop a report based on the field investigation, research
and geotechnical analysis. The report will include a summary of the research efforts,
conclusions reached, recommendations for repairs, and recommendations for
Attachment 3 Page 2 of 3
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
preventative measures (such as criteria or procedure changes) to be taken to prevent
recurrence of this problem going forward.
2. The Design Professional will meet with the City of Denton to review and discuss the final
plan prior to final submittal. This scope anticipates one such meeting.
DELIVERABLES
The Design Professional will provide two bound copies of the final report, along with an
electronic version.
ADDITIONAL SERVICES
Additional Services will include any additional items not specifically included in the Basic
Services outlined above. The Design Professional will perform Additional Services at the hourly
rates shown on Attachment C or at fixed fees as agreed upon by the CITY OF DENTON. No
Additional Services will commence without written authorization from the CITY OF DENTON.
Additional Services could include, but are not limited to, Homeowners meetings, City of Denton
Council briefings, construction plans for reconstruction of failures, etc.
PROJECT SCHEDULE
Geotechnical Investigation This effort will begin immediately upon written authorization to
begin and will take approximately 18 weeks to complete.
Draft Report The Field Investigation and Research will be done concurrently with the
geotechnical investigation. We understand that the geotechnical
investigation will require approximately 18 weeks to complete. The Draft
Report will be submitted 30 Calendar Days after the geotechnical
investigation report is received by the Design Professional.
Final Report The Final Report will be complete within 21 Calendar Days after receipt of
City of Denton comments on the draft report.
Attachment 3 Page 3 of 3
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.ÐBoycott IsraelÑ 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.ÐCompanyÑ 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.
DocuSign Envelope ID: 2462BE0E-4AF8-4865-8C1E-5DE2983BF9E2
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
Organization, I will immediately notify the City of DentonÓs Materials
Certificate Of Completion
Envelope Id: 2462BE0E4AF848658C1E5DE2983BF9E2Status: Sent
Subject: City Council Docusign Item - 6590-001 Pavement Failures Study
Source Envelope:
Document Pages: 22Signatures: 4Envelope Originator:
Certificate Pages: 6Initials: 0Jamie Cogdell
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-06:00) Central Time (US & Canada)Jamie.Cogdell@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
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Completed
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Gary L VickerySent: 3/16/2018 2:50:44 PM
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PrincipalSigned: 3/16/2018 2:53:21 PM
Teague Nall and Perkins, Inc.
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larry.collister@cityofdenton.comViewed: 4/9/2018 4:07:53 PM
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Signed using mobile
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Electronic Record and Signature Disclosure:
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Rebecca HunterSent: 4/9/2018 4:08:03 PM
rebecca.hunter@cityofdenton.com
Assistant Purchasing Manager
City of Denton
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Todd Hileman
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Accepted: 7/25/2017 11:02:14 AM
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Jennifer Walters
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In Person Signer EventsSignatureTimestamp
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Jane Richardson
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Jennifer Bridges
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Jane Richardson
jane.richardson@cityofdenton.com
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Keith Gabbard
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Notary EventsSignatureTimestamp
Envelope Summary EventsStatusTimestamps
Envelope SentHashed/Encrypted4/9/2018 4:08:03 PM
Payment EventsStatusTimestamps
Electronic Record and Signature Disclosure
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-559,Version:1
AGENDA CAPTION
Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2017-18 Budget and
Annual Program of Services of the City of Denton to allow for increases to: (A) the General Fund of
$2,190,291 for the purpose of funding the Vela Soccer Complex project, and (B) the Capital Improvement
Program of $7,643,619 for the purpose of funding drainage, streets and parks capital projects; declaring a
municipal purpose; providing a severability clause; providing an open meetings clause; and providing for an
effective date.
City of DentonPage 1 of 1Printed on 5/3/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Finance
DCM:Bryan Langley
DATE:May8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2017-18
Budget and Annual Program of Services of the City of Denton to allow for increases to: (A) the General
Fund of $2,190,291for the purpose of fundingthe Vela Soccer Complexproject,and(B) theCapital
Improvement Program of $7,643,619for the purpose of fundingdrainage, streets and parkscapital
projects; declaring a municipal purpose; providing a severability clause; providing an open meetings
clause; and providing for an effective date.
BACKGROUND
On March 27, 2018, the City Council received a report regarding the reallocation of project bond funds
and other funds in conjunction with the City’s Capital Improvement Program(CIP). The City Council
directed staff to meet with the Audit/Finance Committee regarding specific projects prior to their future
consideration for reallocating funds.
On April 10, 2018, the Audit/Finance Committee received a report regarding the Fire Station #3, Police
Firing Range, and Ruddell Realignment projects. The Committee recommended approval of the
additional funding of $1,685,000 in Certificates of Obligation (COs) for Fire Station #3. The sale of COs
for Fire Station #3 will be considered by the City Council on May 22, 2018,as part of their consideration
of a bond ordinance to issue COs and General Obligation Bonds (GOs) for general government projects.
The Committee requested additional information regarding the Police Firing Range and Ruddell
Realignment projects and as such, no recommendation for the reallocation of funds is included in this
agenda item. Staff anticipates reconvening with the Committee in early May to discuss these projects.
In response to direction from the City Council and Audit/Finance Committee, staff is proposing to amend
the City’s FY 2017-18 Budget as follows:
1.Increase the General Fund budget by $2,190,291to fund the Vela Soccer Complexproject. This
amendment increases the expenditure budget for this fund from $122,382,991 to $124,573,282for
FY 2017-18. As previously discussed with the City Council, the original cost for this projectwas
$1,333,000 and included in the 2014 Bond Program. The revised project cost for this project is
$6,000,000. Theremaining $2,784,766 has previously been allocated to this project from various
sources. Parks Department staff will conduct a Work Session discussion with the Council prior to
consideration of this budget amendment and award of a construction contract.
This additional drawdown of fund balance from the General Fund still maintains it within the 20-
25% target range at 22.5% of budgeted expenditures for FY 2017-18. Approximately $906,000 of
this additional drawdown is attributable the $3.6 million fund balance increase in FY 2016-17.
2.Increase the Capital Improvement Program budget by $7,643,619to funddrainage, streets and
parks capital projects. A list of capital projects is provided in Exhibit 2. This amendment
increases the expenditure budget for the Capital Improvement Program from $522,596,845to
$530,240,464for FY 2017-18. Below is a detailed breakdown of this increase:
a.$2,729,903 –This is a reallocation of project funds from the FM 1830 ($1,950,098) and
US 377 ($779,805) projects to the Bonnie Brae Phase 4 ($2,479,903) and Morse Street
Expansion ($250,000) projects. Additionally, staff proposes the reallocation of $1,020,097
from the Bonnie Brae Phase 6 project to the Bonnie Brae Phase 4project. The Bonnie
Brae Phase 4 project has a revised project cost of $13,000,000 and these reallocations will
bridge the funding gap from the $9,500,000 original project cost.
The reallocated project funds for FM 1830 and US 377 were approved in the 2005 Bond
Election program and the bonds issued in 2012 with a term of 20 years. The bonds were
issued at an interest rate of 3.5% and are callable on February 15, 2022. In consideration
of the current rising interest rate environment, the cost of escrowing the funds until the
callable date, and the priority of the Bonnie Brae project, staff recommends retaining these
funds and reallocating them as indicated.
b.$2,705,131 –This amount includes both the use of General Fund resources ($2,190,291)
and unallocated CIP savings ($514,840).
c.$2,208,585 –This amount is attributable to unbudgeted capital project funds (drainage
channel rehabilitation funds)to be allocated to the DowntownDrainage Projects and
Magnolia Street Drainage Phase 2 (Hinkle Drive) Project.
The Downtown Drainage Projects are comprised of the (a) Hickory Street Drainage and
Trunk Line System ($600,000), (b) South Bell Drainage System ($806,000), and (c) Oak
Street Drainage projects. The total revised project cost for these projects is $1,876,749.
Staffis proposing a minor reallocation of $61,594 of GO bonds within these projects to
balance out the projects. Staff is proposing to bridge the funding gap of $470,749 with
unbudgeted capital project funds (drainage channel rehabilitation funds) for storm water
drainage projects.
The Magnolia Street Drainage Phase 2 Project was originally planned for the construction
of a separate storm drain system to capture, contain, and convey the runoff from the upper
portion of the watershed to the outfall at PecanCreek, south of Good Samaritan Village.
This project would further alleviate flooding in the area and enable the reconstruction of
Hinkle Drive. The original cost for this project was $2,557,000. This project is planned to
begin construction in late 2018 and completed in late 2019. However, the revised project
cost is now $4,460,836. No reallocation of GO bonds is requested to bridge the funding
gap for this project. Instead, staff is proposing to primarily bridge the funding gap with
$1,737,836 inunbudgeted capital project funds (drainage channel rehabilitation funds) for
storm water drainage projects.
The Public Utilities Board recommended approval of the use of thedrainage channel
rehabilitation funds on March 26, 2018. Additionally, staff will be prepared to discuss the
future use of these funds as well as the future funding of drainage and watershed
operations during the upcoming budget process.
RECOMMENDATION
Staff recommends adoption of the ordinance.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
On April 10, 2018, the Audit/Finance Committee received a report regarding the Fire Station #3, Police
Firing Range, and Ruddell Realignment projects.
On March 27, 2018, the City Council received a report regarding the reallocation of project bond funds
and other funds in conjunction with the City’s Capital Improvement Program. The City Council directed
staff to meet with the Audit/Finance Committee regarding specific projects prior to their future
consideration for reallocating funds.
On March 26, 2018, the Public Utilities Board unanimously approved staff’s recommendation to utilize
Drainage Channel Rehabilitation funds for the purpose of funding shortfalls in various 2014 Bond
Program drainage projects.
On March 8, 2018, the 2014 Bond Oversight Committee unanimously approved staff’s recommendations
to reallocate previously issued and to be issued GOs for the purpose of funding shortfalls in various 2014
bond program projects.
On January 30, 2018, the 2014 Bond Oversight Committeeunanimously approved the reallocation of $1.5
million in GOs from Street Reconstruction to Miscellaneous Traffic Signals and the utilization of $1.5
million in GOs to reconstruct a city facility located at 651 Mayhill for the City’s Traffic Operation.
FISCAL INFORMATION
This ordinance will amend the FY 2017-18Budget and Annual Program of Services to allow for an
increase to theGeneral Fund by $2,190,291 increasing appropriations from $122,382,991to
$124,573,282, and increase the Capital Improvements Program by $7,643,619 from $522,596,845to
$530,240,464.
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.List of Capital Projects
3.Ordinance
Respectfully submitted:
Antonio Puente, Jr., 349-7283
Director of Finance
Prepared by:
Nancy Towle
Budget Manager
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-583,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,
acceptingcompetitiveproposalsandawardingapublicworkscontractfortheconstructionoftheG.Roland
VelaAthleticComplexfortheCityofDenton;providingtheexpenditureoffundstherefor;andprovidingan
effectivedate(RFP6671-awardedtoNorthRockConstruction,LLC,inthenot-to-exceedamountof
$5,692,727).
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal corporation,
accepting competitive proposals and awarding a public works contract for the construction ofthe G. Roland
Vela Athletic Complexfor the City of Denton;providing the expenditure of funds therefor; and providing
an effective date (RFP 6671-awarded to North Rock Construction, LLC,in the not-to-exceed amount of
$5,692,727).
RFP INFORMATION
The Vela Athletic Complex originated in the 2005 Capital Improvement Program (CIP). The original
concept called for purchasing 16 acres from the Denton Independent School District at the C.H. Collins
Complex and constructing three lighted soccer fields anda restroom / concession building at a cost of
$1,600,000. Pursuit of the site was suspended when it was determined the proposed area was part of the
storm water detention for the complex and the amenities could not be built on that site.
In 2008, the Parks and Recreation Department (PARD) combined funds with the Police Department to
purchase the 20 acre site located on Hwy 77. The acquisition amount was $1,345,761 with $961,734 funded
through Certificates of Obligation (CO’s) and $384,027 from the 2005 CIP soccer project. The intent of the
purchase was to acquire land for the proposed Animal Care and Adoption Center. The tract met the desired
criteria of accessibility and visibility, reasonable proximity to other public facilities or park like amenities,
accessible infrastructure, and conducive site topography for the animal care facility. It was also ideally
situated to allow for the expansion of the northeastern limits of North Lakes Park. Jacobs Engineering was
hired to design the athletic complex using part of the 20 acres and the area north of the Windsor pond in
North Lakes Park. Concept designs were prepared and presented to the community. Feedback indicated
strong opposition to the plan due to the encroachment on natural preserve area.
Staff identified property adjacent to North Lakes Park as a site for the complex. City Council approved the
purchase of a 26-acre tract between Riney Road and the natural area in North Lakes Park in October 2012,
at a cost of $1,000,000. Funding included $500,000 from the 2005 CIP soccer project, $250,000 from Park
Gas Well revenue, and $250,000 from an Open Space CIP. In July of 2013, a contract was signed with
Dunaway & Associates for the design on the new property.
In the fall of 2014, voters approved an additional $1,333,000 in the CIP for the project to retain the restroom
/ concession building elements of the original concept, a large pavilion, and a playground. The final design
of the complex included four lighted adult multi-use fields, a restroom facility, concession stand, a
playground, and several pavilion areas, and a parking lot with an opinion of probable construction cost of
$5,500,000.
The bid documents for the project were designed to maximized construction and funding options by
outlining a base bid for two fields, the restroom / concession structure, a pavilion and a section of parking,
Alternative bid options captured the full scope of the design by including the third and fourth fields,
additional pavilions, a full parking layout, and site amenities.
The current revised cost for this project is $6,000,000, including outsourced project management. In
addition to a balance of original funding, the project has $1,386,669 of previously allocated funds from
various sources. An additional $575,000 wasallocated from General Fund balance as approved by Council
on December 12th, 2017. A budget amendment totaling $2,190,291utilizing additional General Fund
resources and unallocated savings from other capital projects was proposed to Council on March 27, 2018.
This reallocation of resources fully funds the project.
A companion contract for professional services in the amount of $188,909 related to project management
for the construction of the complex is also included in the project cost. Project management by Freese and
Nichols, Inc. will assist the City in ensuring construction of the project is performed as contracted, provide
an additional evaluation of costs and potential changes, and keep the project on the stated timeline.
The scope of services includes:
Regular meetings with City representatives to review and provide updates on the project status
Site visits to observe progress and quality of work is in accordance with the construction contract
documentation
Review of material certified test reports
Establish procedures for administering constructive changes / prepare documentation for contract
modifications
Maintain project documentation
Review payment requests
Conduct final review of the project for conformance of compliance
Requests for Proposals were sent to 768prospective contractor for these services. In addition, specifications
were placed on the Materials Management website for prospective contractors to download and advertised
in the local newspaper. Six (6)proposals were received, and evaluated based upon published criteria
including project schedule, indicators of probable performance,compliance with specifications, and price.
Based upon this evaluation, North Rock Constructionwas ranked the highest and determined to be the best
value for the City (Exhibit 2).
PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS)
City Council received presentations on the G. Roland Vela Athletic Complex and funding on September
12, 2017, December 12, 2017, March 27, 2018, April 3, 2018,and April24, 2018.
RECOMMENDATION
Staff recommends awarding the contract to North Rock Construction in the amount of $5,692,727which
includes payment and performance bonds and a two (2) year warranty for the facility.
PRINCIPAL PLACE OF BUSINESS
North Rock Construction, LLC
Denton, Texas
ESTIMATED SCHEDULE OF PROJECT
By proposed contract, total calendar days to completion is 292. Work will begin with 15 days of notice to
proceed by the City.
FISCAL INFORMATION
These services will be funded from Parksaccount 400171470. Requisition #138430has been entered into
the Purchasing software system in the amount of $5,692,727. The budgeted amount for this item is
$6,000,000.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road map that will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this
specific City Council agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Safe, Liveable & Family-Friendly Community
Related Goal:4.4 Provide and support outstanding leisure, cultural, and educational
opportunities
EXHIBITS
Exhibit 1:Agenda Information Sheet
Exhibit 2:Pricing Evaluation
Exhibit 3:Contract
Exhibit 4:Ordinance
Respectfully submitted:
Karen Smith, 940-349-7100
Purchasing Manager
For information concerning this acquisition,contact:Gary Packan at 940-349-7460.
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CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND NORTH ROCK CONSTRUCTION, LLC
(RFP #6671)
THIS CONTRACT is made and entered into this date ,by
and between North Rock Construction, LLC, whose address is 525 South Loop 288, Suite 105,
Denton, Texas 76205, 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
RFP # 6671,
a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes
BThe Contract consists of this written agreement and the following items which are
attached hereto and incorporated herein by reference:
(a) Special Terms and Conditions
(b) City of Denton Request for Proposal #6671 on file at Office of
Purchasing Agent)
(c) General Provisions-Standard Terms and Conditions C;
(d) Payment and Performance Bond Requirements D
(e) Insurance Requirements E);
(f) Certificate of Interested Parties Electronic Filing
(g) Contractor ");
(h) House Bill 89 Verification H
(i) Senate Bill 252 Certification I
(j) Form CIQ Conflict of Interest Questionnaire (Exhibit "J")
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
The parties agree to transact business electronically. Any statutory requirements that certain terms
be in writing will be satisfied using electronic documents and signing. Electronic signing of this
document will be deemed an original for all legal purposes.
IN WITNESS WHEREOF, the parties of these presents have executed this Contract in
the year and day first above written.
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CONTRACTOR
BY: ______________________________
AUTHORIZED SIGNATURE
Date: _______________________________
Name:______________________________
Title: _______________________________
___________________________________
PHONE NUMBER
___________________________________
EMAIL ADDRESS
___________________________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
TODD HILEMAN
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
By: _________________________________
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EXHIBIT A
SPECIAL TERMS AND CONDITIONS
1. Total Contract Amount
The Contract total for services shall not exceed $5,692,727. Pricing shall be per Exhibit G
attached.
2. Contract Term
The Contract shall commence upon the issuance of a Notice to Proceed. Contractor shall begin
work on site within ten (10) calendar days of receipt of Notice to Proceed. Project shall be
completed within two-hundred ninety-two (292) calendar days after work commences on site.
Delays are further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3.
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EXHIBIT C
GENERAL PROVISIONS- TERMS AND CONDITIONS FOR FACILITY
CONSTRUCTION SERVICES
Invoices, Payments, and Releases
1. INVOICES AND PAYMENT PROCESSING:
Payment processing: The City review, inspection, and processing procedures for invoices
ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals
which call for payment before thirty (30) days from receipt of invoice, or cash discounts given
on such payment, will be considered only if, in the opinion of the Purchasing Manager, the
review, inspection, and processing procedures can be completed as specified. It is the intention
of the City of Denton to make payment within thirty (30) days after receipt of valid invoices
for which items or services have been received unless unusual circumstances arise. The thirty
(30) day processing period for invoices will begin on the date the invoice is received or the
date the items or services are received, whichever date is later.
Direct deposit for payments: Prime Contractors are encouraged to arrange for receiving
payments through direct deposit. Information regarding direct deposit payments is available
from the City of Denton Purchasing website: www.dentonpurchasing.com.
Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department,
215 E McKinney St, Denton, TX, 76201-4299 with a copy to the attention of Drew Huffman,
Parks Superintendent, 601 E. Hickory St. Denton, TX 76205. The copy may also be emailed
to Mr. Huffman at drew.huffman@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
-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
to the Prime Contractor prior to completion of the Project. Upon the approval by the Owner
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of the Prime
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, materialmen and subcontractors furnishing services or materials for the
Project, to the effect that all materials or services used on or for the Project have been paid for
and indicating that the Owner is 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
If default shall be made by the Prime Contractor or by any subcontractor in the performance
of any of the terms of this proposal, the Owner, without in any manner limiting its legal
and equitable remedies in the circumstances, may serve upon the Prime Contractor and the
Surety or Sureties upon the Prime Contractor's bond or bonds a written notice requiring the
Prime Contractor to cause such default to be corrected forthwith. Unless within twenty
(20) days after the service of such notice upon the Prime Contractor such default shall be
corrected or arrangements for the correction thereof satisfactory to the Owner and/or
Architect/Engineer shall be made by the Prime Contractor or its Surety or Sureties, the
Owner may take over the 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
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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.
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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 Contrac
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
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;
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(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
c) THE WORK
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
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
that the Work may only be a part of the Project.
e) THE DRAWINGS
The Drawings (also
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.
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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
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) -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
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(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)
materials, appurtenances and other expenses to complete in place, ready for operation
or use;
(2) e is mandatory;
(3)
(4)
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.
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(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) 0the Specifications and 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.
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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
1.1(j), 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
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)
reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent
upon the Prime Contractor to identify, establish, and maintain a current schedule of latest
dates for submittal and approval, as required in Paragraph 3.10, including when such
information or services must be delivered. If Owner delivers the information or services to
the Prime Contractor as scheduled and Prime Contractor is not prepared to accept or act on
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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 t
carry out Work as described in Paragraph 2.4.
(g)
performance of the Work to assist the Architect/Engineer in the performance of the
Prime
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
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
Paragraph 12.2.
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
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
issued deducting the Owner's cost of correction, including Architect/Engineer's compensation
for additional services and expenses made necessary by the failure or refusal of the Prime
Contractor from payments then or thereafter due to the Prime Contractor. The cost of correction
is subject to verification (but not approval) by the Architect/Engineer. If payments then or
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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
Prime Prime Contractor or the Prime
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.
(b) The Prime Contractor shall perform the Work in accordance with the Contract Documents
and submittals approved pursuant to Paragraph 3.12.
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3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
(a) The Prime Contractor shall supervise and direct the Work, using the Prime
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 contractors, 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
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
as provided above may be rejected and replacement required, without any increase to the
Contract Sum or Contract Time.
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(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
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
modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear under normal usage. If required by the
Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment. The commencement date, duration, and other
conditions related to the scope of this general warranty are established in Subparagraphs
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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
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
shall promptly notify the Architect/Engineer and the Owner in writing, and necessary
changes shall be accomplished by appropriate Amendment.
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(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
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
(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.
The Owner reserves the right to request that the Prime Contractor replace its superintendent at
any time and the Prime
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3.10 PRIME
(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,
requires completion prior to commencement of the task next following (the
(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
any adjustments to the Contract Time granted by the Owner. The updated schedule
must be submitted with the Prime such
application will be certified without a satisfactory update to the construction schedule.
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(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 o
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
the Prime
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
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.
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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,
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
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submittal by the Architect/Engineer, the Prime Contractor shall be responsible for all
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
ssion 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
otherwise altering the Work.
(c) A Hot Work Permit
Department, 869 S. Woodrow Lane, Denton, Texas (940 349-7200) for any temporary
operation involving open flames or producing heat and/or sparks. This includes, but is
not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and
Welding.
3.15 CLEANING UP
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(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
construction equipment, machinery, and surplus materials.
(b) If the Prime Contractor fails to clean up as provided in the Contract Documents, the
Owner may, clean up the Project site,
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
if any. The Prime Contractor shall bear the costs of any subsequent testing, inspection, or
approval of the corrected Work.
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(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
ARCHITECT/ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT
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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
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
representative to serve as the Architect/Engineer. The replacement Architect/Engineer,
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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 C
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
ll not be
responsible for the Prime
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.
(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.
(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
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for safety precautions and programs in connection with the Work, since these are solely
the Prime agraph 4.3. The Architect/Engineer
and the Owner will not be responsible for the Prime
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
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) Prime
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
only for the limited purpose of checking for conformance with information given and the
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
Prime
Prime Contractor of any obligations under
review shall not constitute
approval of safety precautions or, unless otherwise specifically stated in writing by the
Architect/Engineer, of any construction means, methods, techniques, sequences, or
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fic 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
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 assis
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
e
made with reasonable promptness and within any time limits agreed upon. The
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.
(l) 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) 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
adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract
Time, or some other relief in respect to the terms of the Contract Documents. The term also
includes all other disputes between the Owner and the Contractor arising out of or relating
to the Project or the Contract Documents, including but not limited to claims that work was
outside the scope of the Contract Documents. The responsibility to substantiate the Claim
and the burden of demonstrating compliance with this provision shall rest with the party
making the Claim. Except where otherwise provided in the Contract Documents, a Claim
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by the Prime Contractor, whether for additional compensation, additional time, or other
relief, including but not limited to claims arising from concealed conditions, WITHOUT
EXCEPTION, MUST BE MADE BY WRITTEN NOTICE TO THE
ARCHITECT/ENGINEER AND TO THE OWNER WITHIN FOURTEEN (14) DAYS
IMMEDIATELY AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING
RISE TO THE PARTICULAR CLAIM. Every Claim of the Prime Contractor, whether for
additional compensation, additional time, or other relief, including but not limited to claims
arising from concealed conditions, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind the Prime
Contractor by his signature) of the Prime Contractor, verifying the truth and accuracy of
the Claim. THE PRIME CONTRACTOR SHALL BE CONCLUSIVELY DEEMED TO
HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH
THE PROCEDURES AND TIME LIMITS SET OUT IN THIS PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between
the Prime Contractor and the Owner relating to the progress or execution of the Work or
the interpretation of the Contract Documents shall be referred to the Architect/Engineer for
recommendation to the Owner, which recommendation the Architect/Engineer will furnish
in writing within a reasonable time, provided proper and adequate substantiation has been
received. Failure of the Prime Contractor to submit the Claim to the Architect/Engineer for
rendering of a recommendation to the Owner shall constitute a waiver of the Claim.
(c) Continuing Contract Performance. Pending final resolution of a claim the Prime Contractor
shall proceed diligently with performance of the Work and the Owner shall continue to
make payments in accordance with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time
associated with concealed or unknown conditions will normally be considered or allowed;
provided, however, that the Contract Sum or Time may be adjusted by the Owner in such
circumstances only if:
(1) a concealed subsurface condition is encountered in the course of performance of the
Work;
(2) a concealed or unknown condition in an existing structure is at variance with conditions
indicated by the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in an
existing structure which is of an unusual nature and materially different from those
ordinarily encountered and generally recognized as inherent in the character of the
Work; and
(4) a notice of claim with proper and adequate substantiation is presented pursuant to
Subparagraph 4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to
fully inspect the portion of the Project site where the condition was discovered; and
(ii) the work caused or required by the concealed or unknown condition at issue can be
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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
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) on of the Work where the Prime
Contractor was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. If the Prime Contractor suffers injury or damages
to person or property because of an act or omission of the Owner, or of any of the Owner's
officers, employees or agents, written, sworn-to notice of any claim for damages or injury
shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail
to enable the Architect/Engineer and the Owner to investigate the matter.
(h) Subcontractor Pass-Through Claims. In the event that any Subcontractor of the Prime
Contractor asserts a claim to the Prime Contractor, that the Prime Contractor seeks to pass
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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
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.
Extensions, in Whole or in Part. The Prime Contractor acknowledges and agrees that
Substantial Completion of the Work by or before the Scheduled Completion Date is of
substantial importance to Owner. The following provisions, therefore, will apply:
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(1) If the Prime Contractor falls behind the approved construction schedule for
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
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:
(1) claims, security interests, purported liens, or other attempted encumbrances arising out
of the Contract and remaining unsettled;
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(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 RECO
FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS
OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION
PROCEEDING.
(l) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS
SHALL BE CONSTRUED TO WAIVE THE
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
singular in number and means a Subcontractor or an authorized representative of the
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
-
to throughout the Contract Documents as if singular in number and means a Sub-
subcontractor or an authorized representative of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF
THE WORK
(a) Immediately after the award of the Contract by the Owner, and before the Building
Construction Services Agreement is signed by the Prime Contractor and the Owner, the
Prime Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the
Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers,
M/WBE certification numbers (where applicable), and type of work of the Subcontractors
(including those who are to furnish materials or equipment fabricated to a special design),
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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
Prime
Contractor shall comply with the following additional rules regarding Subcontractor
payments:
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(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.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Prime
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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
AND TO AWARD SEPARATE
CONTRACTS
(a) The Owner reserves the right to perform construction or operations related to the Project
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
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 Ow
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 Prime
Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions.
(d) Unless otherwise provided in the Contract Documents, when the Owner performs
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.
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6.2 MUTUAL RESPONSIBILITY
(a) The Prime Contractor sh
opportunity for access to and storage of their materials and equipment and the performance
of their activities and shall coordinate the Prime
with the separate contractors as required by the Contract Documents.
(b) If part of the Prime
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 constitu
completed or partially completed construction is fit and proper to receive the Prime
(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
Prime Contractor shall fully pay
or satisfy it and shall reimburse the Owner for any and all attorney's fees and costs which
the Owner has incurred.
(f) The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Prime Contractor in Paragraph 3.14.
If a dispute arises among the Contractor, separate contractors and the Owner as to the
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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
(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
releases any claim against the Owner for additional time or compensation for matters
relating to or arising out of or resulting from the Work included within or affected by the
executed Change Order. This release applies to claims related to the cumulative impact of
all Change Orders and to any claim related to the effect of a change on other Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall
any substitutions, changes or additions to or omissions or deviations from the requirements
of the Drawings and Specifications be made unless pursuant to a written Change Order
signed by the Owner and the Architect/Engineer, it being expressly understood that the
Owner shall not be liable for the cost of extra work or any substitution, change, addition,
omission or deviation from the requirements of the Drawings or Specifications unless the
same shall have been authorized in writing by the Owner and the Architect/Engineer in a
written change order or other Amendment. The provisions of this Paragraph 7.1 shall
control in the event of any inconsistency between such provisions and the other provisions
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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 workers compensation insurance;
(2) costs of materials, supplies and equipment (but not to include off-site storage unless
approved in writing by the Owner), whether incorporated or consumed;
(3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from
the Contractor or others;
(4) costs of premiums for all bonds and insurance related to the Work; and
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(5) additional costs of supervision and field office personnel directly attributable to the
changed Work. Pending final determination of cost to the Owner, payment of
undisputed amounts on force account shall be included on the Architect/Engineer's
Certificate of Payment as work is completed.
(f) The amount of credit to be allowed to the Owner for any deletion of Work or any other
change which results in a net decrease of the Contract Sum shall be the amount of actual
net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and
profit. When both additions and deletions or credits covering related Work or substitutions
are involved in any one change, the allowance for overhead and profit shall be figured on
the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead of
a Change Order form, including but not limited to situations involving partial occupancy of the
Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an
increase in the Contract Sum, or special circumstances where it is necessary or more appropriate
for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a
status equal to that of Change Orders for purposes of priority of Contract Documents interpretation,
except that to the extent of a conflict, later Supplemental Agreements in time control over earlier
Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time
controls over earlier dated Change Orders and Supplemental Agreements. The rules of
Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental
Agreements.
7.3 MINOR CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes
in the Work not involving an adjustment in the Contract Sum or an extension of the Contract
Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be
effected by written order, and shall be binding on the Owner and the Contractor. The
Contractor shall carry out such written orders promptly. These written orders shall not be
deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no
Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor
submits its change proposal, prior to complying with the minor change ordered and in no event
later than ten (10) working days from the date the minor change was ordered, to the Owner for
approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
(a)
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
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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)
and ending at 12:00 midnight, unless otherwise specifically defined by special provision.
8.2 PROGRESS AND COMPLETION
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By
executing the Building Construction Services Agreement, the Prime Contractor confirms
that the Contract Time is a reasonable period for performing the Work.
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(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
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 REMEDY.
(d) The Owner shall have the right to occupy, without prejudice to the right of either party,
any completed or largely completed portions of the structure or Work, notwithstanding the
fact that the Contract Time for completing all or a portion of the Work may not have
expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken
or used.
(e) The 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.
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(f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend
the Work, in whole or in part, for such period or periods as the Architect/Engineer deems
necessary due to unusual or severe weather conditions as are considered unfavorable for
the suitable prosecution of the Work, or due to failure on the part of the Prime Contractor
to correct conditions considered unsafe for workmen or the general public. If it should
become necessary to stop the Work for an indefinite period, the Prime Contractor shall
store all materials in such a manner that they will not obstruct or impede the public
unnecessarily or become damaged in any way, and shall take every precaution to prevent
damage or deterioration of the Work performed. In cases of suspension of the Work under
this Subparagraph, the Prime Contractor shall also provide suitable drainage about the
Work and erect temporary structures where necessary. The Prime Contractor shall not
suspend the Work in whole or in part without written authority from the Architect/Engineer
or the Owner, and shall resume the Work promptly when notified by the Architect/Engineer
or the Owner to resume operations.
(g) In the event of a delay that is the responsibility of the Prime Contractor or any of the
Subcontractors, for which the Prime Contractor is not entitled to a time extension under
the provisions of this Contract, the Owner may direct that the Work be accelerated by
means of overtime, additional crews or additional shifts, or resequencing. This acceleration
shall be at no cost to the Owner and will continue until the Contract Time is restored. In
the event of a delay for which the Prime Contractor is entitled to a time extension, as
determined by the Architect/Engineer, Owner may similarly direct acceleration and the
Prime Contractor agrees to perform same on the basis that the Prime Contractor will be
reimbursed only to the extent described in Subparagraph 4.3(i). THE PRIME
CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION
RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR
PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 - PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum is stated in the Building Construction Services Agreement and, including
authorized adjustments, is the total amount of compensation payable by the Owner to the Prime
Contractor for the performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Prime Contractor shall submit to the
Architect/Engineer a schedule of values allocated to various portions of the Work, prepared in
such form and supported by such data to substantiate its accuracy as the Architect/Engineer
may require. This schedule, when approved by the Architect/Engineer and the Owner, shall be
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.
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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 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 Prime
Contractor of the funds deemed to be in dispute.
(c) Unless otherwise provided in the Contract Documents, progress payments shall include
payment for materials and equipment delivered and suitably stored at the Project site for
subsequent incorporation into the Work within thirty (30) days after delivery to the Project
site. If approved in advance by the Owner, payment may similarly be made for materials
and equipment suitably stored away from the Project site at a location agreed upon in
writing. Payment for costs incurred in storage of materials or equipment away from the
Project site will NOT be made by Owner unless:
(1) the Owner has given prior approval of such off-site storage in writing;
(2) the materials or equipment are stored in a bonded warehouse located in Denton County
and identified with the Project for which they are stored, as evidenced by warehouse
receipts and appropriate documents of title; and
(3) the materials or equipment stored off-site will be incorporated into the Work within
thirty (30) days after delivery. STORAGE IN FACILITIES OF THE
MANUFACTURER OR THE PRIME CONTRACTOR WILL NOT BE
PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN
PRIOR APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Prime Contractor warrants that title to all Work covered by an Application for Payment
will pass to the Owner no later than the time of payment. The Prime Contractor further
warrants that upon submittal of an Application for Payment all Work for which Certificates
for Payment have been previously issued and payments received from the Owner shall be
free and clear of liens, claims, security interests or encumbrances in favor of the Prime
Contractor, Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials, and equipment relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to
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arly 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
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
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
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
and the data comprising the Application for Payment, that the Work has progressed to the
and belief, quality of the Work is in accordance with the Contract Documents. The
foregoing representations are subject to an evaluation of the Work for conformance with
the Contract Documents upon Substantial and Final Completion, to results of subsequent
tests and inspections, to minor deviations from the Contract Documents correctable prior
to Final Completion and to specific qualifications expressed by the Architect/Engineer.
The issuance of a Certificate for Payment will further constitute a representation that the
Prime
approval. The issuance of a Certificate for Payment is not a representation that the
Architect/Engineer has:
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(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
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
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
to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer
or the Owner is unable to certify payment in the amount of the Application, the
Architect/Engineer or the Owner will notify the Prime Contractor as provided in
Subparagraph 9.4(a). If the Prime Contractor and Architect/Engineer or the Owner cannot
agree on a revised amount, the Architect/Engineer will promptly issue a Certificate for
Payment for the amount for which the Architect/Engineer is able to make the required
representations to the Owner. The Architect/Engineer or the Owner may also decide not to
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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 neces
protect the Owner from loss because of:
(1) defective or nonconforming Work not remedied;
(2) third-party claims filed or reasonable evidence indicating probable filing of such
claims;
(3) failure of the Prime Contractor to make payments properly to Subcontractors or for
labor, materials, or equipment;
(4) reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
(5) damage to the Owner or another contractor;
(6) reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or damages for the
anticipated delay;
(7) persistent failure to carry out the Work in accordance with the Contract Documents; or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When all of the above reasons that existed for withholding certification are removed or
remedied, then, at that time, certification will be made for amounts previously withheld.
(c) The Owner may, at its option, offset any progress payment or final payment under the
Contract Documents against any debt (including taxes) lawfully due to the Owner from the
Prime Contractor, regardless of whether the amount due arises pursuant to the terms of the
Contract Documents or otherwise, and regardless of whether or not the debt due to the
Owner has been reduced to judgment by a court.
9.6 PROGRESS PAYMENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and shall
so notify the Architect/Engineer. The Owner shall not be liable for interest on any late or
delayed progress payment or final payment caused by any claim or dispute, any
discrepancy in quantities, any failure to provide supporting documentation or other
information required with the Application for Payment or as a precondition to payment
under the Contract Documents, or due to any payment the Owner or the Architect/Engineer
has a right to withhold or not certify under the Contract Documents. Notwithstanding the
foregoing, the Owner may refuse to make payment on any Certificate for Payment
(including, without limitation, the final Certificate for Payment) for any default under the
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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
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
to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph
11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6(b), (c), and (d).
(f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the
Project by the Owner shall not constitute acceptance of Work not performed in accordance
with the Contract Documents.
9.7 SUBSTANTIAL COMPLETION
(a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date
certified by the Architect/Engineer when construction is sufficiently completed in accordance with
the City Of Denton General Conditions For Building Construction.
(a) the Contract Documents such that the Owner may beneficially occupy and use the Work,
or designated portions of the Work, for the purposes for which it is intended and only trivial
and insignificant items remain which do not affect the Work as a whole.
(b) When the Prime Contractor considers that the Work, or the portion of the Work which the
Owner agrees to accept separately, is Substantially Complete, the Prime Contractor shall
prepare and submit to the Architect/Engineer a comprehensive list of remaining items to
be completed or corrected. The Prime Contractor shall proceed promptly to complete and
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
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Architect/Engineer will make an inspection to determine whether the Work, or designated
on
discloses any item, whether or not included on the punch list, which is not in accordance
with the requirements of the Contract Documents and which renders the Work inspected
not Substantially Complete the Contractor shall, before issuance of the Certificate of
Substantial Completion, complete or correct the item upon notification by the
Architect/Engineer. The Prime Contractor shall then submit a request for another
inspection by the Architect/Engineer to determine Substantial Completion. When the Work
or designated portion of the Work is Substantially Complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion which shall establish the date of Substantial
Completion, shall establish responsibilities of the Owner and the Prime Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the
time within which the Prime Contractor shall finish all items on the punch list
accompanying the Certificate.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and the Prime
Contractor for their written acceptance of responsibilities assigned to them in the
Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Prime Contractor and certification by the Architect/Engineer, the Owner
shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of
the Work, as provided in the Contract Documents.
9.8 PARTIAL OCCUPANCY OR USE
(a) The Owner may occupy or use any completed or partially completed portion of the Work
at any stage when such portion is designated by separate Supplemental Agreement with
the Prime Contractor, provided such occupancy or use is consented to by the insurer as
required under Subparagraph 11.2(e) and authorized by public authorities having
jurisdiction over the Work. Such partial occupancy or use may commence whether or not
the portion is Substantially Complete, provided the Owner and Prime Contractor have
accepted in writing the responsibilities assigned to each of them for payments, retainage if
any, security, maintenance, heat, utilities, damage to the Work and insurance, and have
agreed in writing concerning the period for correction of the Work and commencement of
warranties required by the Contract Documents. When the Prime Contractor considers a
portion Substantially Complete, the Prime Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Prime
Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the
progress of the Work shall be determined by written agreement between the Owner and
Prime Contractor or, if no agreement is reached, by decision of the Architect/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Prime Contractor, and
Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to
be used in order to determine and record the condition of the Work.
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(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
Architect/Engineer finds the Work acceptable under the Contract Documents and the
Contract Documents fully performed, the Architect/Engineer will promptly issue a final
info
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
for Payment will constitute a further representation that conditions listed in Subparagraph
9.9(b) as a condition precedent to the Prime Contracto
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
responsible or encumbered (less amounts withheld by Owner) have been paid or
otherwise satisfied;
(2) a certificate evidencing that insurance required by the Contract Documents to remain
in force after final payment is currently in effect and will not be cancelled or allowed
to expire until at least thirty (30) days prior written notice has been given to the Owner;
(3) a written statement that the Prime Contractor knows of no substantial reason that the
insurance will not be renewable to cover the period required by the Contract
Documents;
(4) a consent of surety to final payment; and
(5) if required by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be
designated by the Owner.
(c) As a precondition to final payment by the Owner under this Contract, the Prime
Contractor's affidavit under Clause (b)(1) shall state that the Prime Contractor has paid
each of his subcontractors, laborers or materialmen in full for all labor and materials
provided to Contractor for the Work performed under this Contract. In the event the Prime
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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;
(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
-subcontractors; and
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(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
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
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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
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
under Paragraph 3.l9. 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
organization at the site whose duty shall be the prevention of accidents. This person shall
be the Prime 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
injury, or loss. Additional compensation or extension of time claimed by the Prime
Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and
Article 7.
10.4 PUBLIC CONVENIENCE AND SAFETY
(a) The Prime Contractor shall place materials stored about the Work and shall conduct the
Work at all times in a manner that causes no greater obstruction to the public than is
considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except
by special permission of the Owner. The materials excavated and the construction
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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
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
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 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
shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades
with adequate markings and directional devices shall also be erected to keep vehicles from
being driven on or into any Work under construction. The Prime Contractor will be held
responsible for all damage to the Work due to failure of barricades, signs, lights and
watchmen to protect the Work. Whenever evidence is found of such damage, the
Architect/Engineer may order the damaged portion immediately removed and replaced by
the Prime Contractor at Prime Contractor's cost and expense. The Prime Contractor's
responsibility for maintenance of barricades, signs, and lights, and for providing watchmen,
shall not cease until the Project has been finally accepted by the Owner.
10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any
telecommunications or public utility, such property shall not be removed or interfered with
until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any
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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
expense, adequate pumping facilities and temporary outlets or diversions. The Prime
Contractor shall, at the Prime
other structures necessary and shall be prepared at all times to dispose of storm drainage and
sewage received from these temporary connections until such time as the permanent
connections are built and in service. The existing storm sewers and connections shall be kept
in service and maintained under the Contract, except where specified or ordered to be
abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a
satisfactory manner so that no nuisance is created and that the Work under construction will
be adequately protected.
10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER;
ELECTRICITY FOR THE PROJECT
(a) When the Prime Contractor desires to use the Owner's water in connection with the Work,
the Prime Contractor shall make complete and satisfactory arrangements with the Denton
Water Utilities Department and shall be responsible for the cost of the water the Prime
Contractor uses. Where meters are used, the charge will be at the regular established rate;
where no meters are used, the charge will be as prescribed by City ordinance, or where no
ordinance applies, payment shall be based on estimates made by the Denton Water Utilities
Department.
(b) The Prime Contractor shall make complete and satisfactory arrangements for electricity
and metered electrical connections with the Owner or with Denton Municipal Electric in
the event that separately metered electrical connections are required for the Project. The
Prime Contractor shall pay for all electricity used in the performance of the Work through
separate metered electrical connections obtained by the Prime Contractor through the City
of Denton.
10.9 USE OF FIRE HYDRANTS
The Prime Contractor, Subcontractors, and any other person working on the Project shall not
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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
APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay
in the progress schedule caused as a result of the discovery and remediation of a
Hazardous Substance may be granted by the Owner only if all remaining Work on the
Project must be suspended and the delay cannot be made up elsewhere in the progress
schedule. Any request for an extension of the Contract Time related to the discovery
and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3
and Article 8.
(c) The 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,
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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
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
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
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 ce purposes, to be provided upon request of
the Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT,
AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE
RESPONSIBILITY OF THE PRIME CONTRACTOR.
(4)
environmental discharge or release.
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(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
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
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
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;
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(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
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
Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS
Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.5 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.5(b), the Prime Contractor shall, with the
execution and delivery of the Construction Services Agreement, furnish and file with the
Owner in the amounts required in this Paragraph, the surety bonds described in Clauses
(a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the
City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended;
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-
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of-Attorney clearly establishing the extent and limitations of the authority of each signer
to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the
total Contract Sum, guaranteeing the full and faithful execution of the Work and
performance of the Contract in accordance with Plans, Specifications and all other
Contract Documents, including any Amendments thereof, for the protection of the
Owner. This bond shall also provide for the repair and maintenance of all defects due
to faulty materials and workmanship that appear within a period of two (2) years from
the date of final completion and acceptance of the improvements by the Owner or lesser
or longer periods as may be otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total
Contract Sum, guaranteeing the full and prompt payment of all claimants supplying
labor or materials in the prosecution of the Work provided for in the Contract
Documents and any Amendments thereto, and for the use and protection of each
claimant.
(b) If the Contract Sum, including Owner-accepted alternates and allowances, if any, is greater
than $50,000, Payment bonds in 100% of the Contract Sum are mandatory and shall be
required to be provided by the Contractor. If the Contract Sum is greater than $100,000, a
Payment Bond and Performance Bond in 100% of the Contract amount is mandatory.
(c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds
or who is a party to any litigation against the Owner. All bonds shall be made and executed
on the Owner's standard forms, shall be approved by the Owner, and shall be executed by
not less than one corporate surety that is authorized and admitted to do business in the State
of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current
United States Department of the Treasury List of Acceptable Sureties, and is otherwise
acceptable to the Owner. Each bond shall be executed by the Prime Contractor and the
surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively
in Denton County, Texas. Each surety shall designate an agent resident in Denton County,
Texas to whom any requisite statutory notices may be delivered and on whom service of
process may be had in matters arising out of the suretyship.
(d)
Contractor will be required to furnish original performance and payment bonds for 100
percent of the total submission price before work is to commence. The Contractor shall
assume all costs in increasing the bond limits if change orders are formally approved.
Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as
amended, from a surety licensed to do business in the State of Texas. The City, at its
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
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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
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)
requirements specifically expressed in the Contract Documents, the Work must, if
observation and be replaced at the Prime
Contract Time.
(b) If a portion of the Work has been covered which the Architect/Engineer has not
specifically requested to observe prior to it being covered, the Architect/Engineer may
request to see such Work and it shall be uncovered by the Prime Contractor. If such Work
is in accordance with the Contract Documents, costs of uncovering and replacement shall,
by appropriate Change Order, be charged to the Owner. If any Work is not in accordance
with the Contract Documents, the Prime Contractor shall pay the costs of uncovering,
repair, replacement unless the condition was caused by the Owner or a separate contractor
in which event the Owner shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
(a) The Prime Contractor shall promptly correct Work rejected by the Architect/Engineer as
failing to conform to the requirements of the Contract Documents, whether observed
before or after Substantial Completion and whether or not fabricated, installed or
completed. The Prime Contractor shall bear costs of correcting such rejected Work,
including additional testing and inspections and compensation for the
y.
(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
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nonconformity. The Prime
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 expense. If the Prime Contractor does not pay costs of removal
and storage within ten days after written notice, the Owner may, upon ten (10) additional
days written notice, sell the materials and equipment at auction or at private sale and shall
account for the proceeds after deducting costs and damages that should have been borne
by the Prime
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
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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 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
liability with respect to the Prime o
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 O
the requirements of the Contract Documents instead of requiring its removal and correction,
in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment
will be accomplished whether or not final payment has been made.
ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY
SUSPENSION
13.1 FINAL COMPLETION OF CONTRACT
The Contract will be considered completed, except as provided in any warranty or
maintenance stipulations, bond, or by law, when all the Work has been finally completed, the
final inspection is made by the Architect/Engineer, and final acceptance and final payment is
made by the Owner.
13.2 WARRANTY FULFILLMENT
Prior to the expiration of the specified warranty period provided for in the Contract
Documents, the Architect/Engineer will make a detailed inspection of the Work and will
advise the Prime Contractor and the Prime uire
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,
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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.
(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
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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
and of the termination shall become due and payable to the surety as the Work
progresses, subject to all of the terms, covenants, and conditions of the Contract
Documents. If the surety does not, within the time specified in Subparagraph 13.3(b),
exercise its obligation to assume the obligations of the Contract, or that portion of the
Contract which the Owner has ordered the Prime Contractor to discontinue, then the
Owner shall have the power to complete the Work by contract or otherwise, as it may
deem necessary. The Prime Contractor agrees that the Owner shall have the right to take
possession of or use any or all of the materials, plant, tools, equipment, supplies, and
property of every kind provided by the Prime Contractor for the purpose of the Work,
and to procure other tools, equipment, labor, and materials for the completion of the
Work, and to charge to the account of the Prime Contractor the expenses of completion
and labor, materials, tools, equipment, and incidental expenses. The expenses incurred
by the Owner to complete the Work shall be deducted by the Owner out of the balance
of the Contract Sum remaining unpaid to or unearned by the Contractor. The Prime
Contractor and the surety shall be liable to the Owner for any costs incurred in excess
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
termination.
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(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
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 Prime Contractor shall
cease the performance of the Work and shall take reasonable and appropriate action to
secure and protect the Work in place. The Prime Contractor shall then be reimbursed by
the Owner in accordance with the terms and provisions of the Contract Documents, not
to exceed actual labor costs incurred, materials stored at the Project site or away from
the Project site as approved by the Owner but not yet paid for, plus actual, reasonable,
and documented termination charges, if any, paid by the Prime Contractor in connection
with the Work in place which is completed and in conformance with the Contract
Documents to the date of termination for convenience. No amount shall ever be due to
the Prime Contractor for lost or anticipated profits.
13.4 TEMPORARY SUSPENSION OF THE WORK
(a) The Work or any portion of the Work may be temporarily suspended by the Owner
immediately upon written notice to the Prime Contractor for any reason, including but
not limited to:
(1) the causes described in Clauses 13.1(a)(1) through (a)(10) above;
(2) where other provisions in the Contract Documents require or permit temporary
suspension of the Work;
(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.
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(b) The Prime Contractor shall immediately resume the temporarily suspended Work when
ordered in writing by the Owner to do so. The Owner shall not under any circumstances
be liable for any claim of the Prime Contractor arising from a temporary suspension due
to a cause described in Clause (a)(1) above; provided, however, that in the case of a
temporary suspension for any of the reasons described under Clauses (a)(2) through
(a)(4), where the Prime Contractor is not a contributing cause of the suspension under
one of those Clauses or where the provision of the Contract Documents in question
specifically provides that the suspension is at no cost to the Owner, the Owner will make
an equitable adjustment for the following items, provided that a claim is properly made
by the Prime Contractor under Subparagraph 4.3 of these General Conditions:
(1) an equitable extension of the Contract Time, not to exceed the actual delay caused
by the temporary suspension as determined by the Architect/Engineer and the
Owner;
(2) an equitable adjustment to the Contract Sum for the actual, necessary, and
reasonable costs of properly protecting any Work that is finished or partially
finished during the period of the temporary suspension (no profit and overhead shall
be allowed on top of these costs); and
(3) if it becomes necessary to move equipment from the Project site and then return it
to the Project site when the Work is ordered to be resumed, an equitable adjustment
to the Contract Sum for the actual, necessary, and reasonable cost of these moves;
provided, however, that no adjustment shall be due if the equipment is moved to
another Project site of the Owner.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS
(a) This Contract shall be in all things governed by the laws of the State of Texas without
regard to conflict of laws principles.
(b) The Contractor shall, during the performance of the Work, comply with all applicable
City codes and ordinances, as amended, and all applicable State and Federal laws, rules
and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
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
less 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
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written consent of the Prime Contractor, except where assignment is compelled or allowed by
court order, the terms of the Contract Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be
effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or
Superintendent of either party, or to an officer, partner, or other designated representative of
either party. Mailed notices shall be addressed to the parties at an address designated by each
party, but each party may change its address by written notice in accordance with this section.
Mailed notices shall be deemed communicated as of three (3) days after mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Prime Contractor by the Contract Documents
and the rights and remedies available to the Owner under the Contract Documents shall be in
addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise
imposed or made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the
Owner under the Contract Documents, nor shall any action or failure to act by the Owner
constitute approval of or acquiescence in a breach of the Contract by Prime Contractor, except
as may be specifically agreed in writing by Change Order or Supplemental Agreement.
14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under
the Contract Documents, except as may be provided by the applicable provisions of the
Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to
Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL
INTEREST IN ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any
Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the
Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer
or employee. Any violation of this article shall constitute malfeasance in office, and any
officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any
violation of this section, with the knowledge, express or implied, of the person, persons,
partnership, company, firm, association or corporation contracting with the Owner shall
render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is
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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
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.
(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.
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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
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.
4. Purchase order
5. Contractor terms and conditions
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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.
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EXHIBIT E
INSURANCE REQUIREMENTS AND
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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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.
\[X\]
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
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
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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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
Said coverage may be
Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11,
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
ployees,
including new hires. This type insurance should be required if the contractor has access to
City funds. Limits of not less than $ each occurrence are required.
\[ \] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and
specific service agreements. If such additional insurance is required for a specific contract,
that requirement will be described in the "Specific Conditions" of the contract
specifications.
File # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
ATTACHMENT 1
\[X\] ompensation 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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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. Th
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 # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
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 a 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. Complete and sign the Form 1295
6. Email the 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
File # 6671
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
EXHIBIT G - PRICING PROPOSAL - RFP 6671 - G. Roland Vela Athletic Complex
North Rock Construction,
LLC.
Denton, TX
Total calendar days to mobilize after Notice to Proceed is issued by City:10
Total calendar days to mobilize on site for substantial completion:10
Total days from Notice to Proceed to Substantial Completion (for base bid):210
Total days from Notice to Proceed to Substantial Completion (for alternates)82
Total days from Notice to Proceed to Substantial Completion (for total bid):292
Base Detailed Pricing:
Item #QTYUOMDescriptionUnit PriceTotal
11LSMobilization and Site Preparation$13,912.94$13,912.94
21LSClearing and Demolition$6,168.94$6,168.94
31LSGrading$351,839.83$351,839.83
41,710SYEntry Drive including Curb$61.38$104,959.80
514,300SFConcrete Walk/Trail including Paver Insets$5.15$73,645.00
63,170SFConcrete Bleacher Pads - Fields 3 & 4$5.15$16,328.67
7310LFWater Line and Service$134.84$41,800.40
8330LFSanitary Sewer Line and Service$55.00$18,150.00
91LSStorm Drainage System$55,132.00$55,132.00
109,100SYEast Parking Lot (209 spaces) and Drives - Concrete including Curb$57.36$521,976.00
11488LFEast Parking Lot Sawtooth Curb$20.90$10,199.20
1214EADrop Off Area Bollards$610.50$8,547.00
131LSSports Field Lighting - Fields 3 and 4 (6 Poles with Fixtures LED)$355,865.40$355,865.40
141LSFields 3 & 4 Fine Grading, Soil Amendments, and Celebration Solid Sod Turf$127,600.00$127,600.00
1535EAEast Parking Lot and Entry Drive Lighting$6,111.60$213,906.00
161LSElectrical Service, Main Panels, etc.$69,515.60$69,515.60
171LSRestroom / Concession Building$889,746.00$889,746.00
187,830SFEntry Plaza (Concrete)$5.15$40,324.50
197,540SFRestroom Plaza (Concrete)$5.15$38,831.00
20240LFEntry 6' Ornamental Fence $68.75$16,500.00
216EAEntry 6' Decorative Columns$1,980.00$11,880.00
221LSPlay Area Perimeter Beam and Drainage$26,893.98$26,893.98
232LSSmall Pavilion Foundation Slab$7,891.14$15,782.28
241LSEast Parking Lot Pavement Striping & Wheelstops$7,975.00$7,975.00
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
251Payment and Performance Bonds$65,450.00$65,450.00
261General Conditions$61,999.67$61,999.67
Base Proposal amount to construct subtotal:$3,164,929.21
Bid Alternates
271LSFields 1 & 2 Fine Grading, Soil Amendments, and Celebration Solid Sod Turf$129,800.00$129,800.00
281LSCore Area Turf - Celebration Solid Sod$16,412.00$16,412.00
2913,300SFConcrete Walk/Trail including Paver Insets$5.15$68,495.00
303,170SFConcrete Bleacher Pads - Fields 1 & 2$5.25$16,642.50
312,510LFFields 3 & 4 Fencing - 16', 6', 4' Chain Link$28.34$71,133.40
321,560LFFields 1 & 2 Fencing - 16', 6', 4' Chain Link$44.57$69,529.20
336EADecorative Column - 4' Fence$1,795.20$10,771.20
342,510LFFields 3 & 4 Conc. Mow Strip Under Fence$13.99$35,114.90
351,560LFFields 1 & 2 Conc. Mow Strip Under Fence$13.99$21,824.40
364EAFields 3 & 4 Bleachers including installation$3,850.00$15,400.00
374EAFields 1 & 2 Bleachers including installation$3,850.00$15,400.00
384EAFields 3 & 4 Player Benches including installation$920.70$3,682.80
394EAFields 1 & 2 Player Benches including installation$920.70$3,682.80
401LSIrrigation - Fields 3 & 4 $35,002.00$35,002.00
411LSIrrigation - Fields 1 & 2$36,212.00$36,212.00
428EAField Corner Markers - Fields 3 & 4$336.60$2,692.80
438EAField Corner Markers - Fields 1 & 2$336.60$2,692.80
44190,000SFIrrigation - Outside of Sports Fields - Except West Parking Islands$0.84$159,600.00
4525,000SFIrrigation - West Parking islands$0.39$9,750.00
461LSIrrigation Pump and Control System$87,279.50$87,279.50
472EALarge Grill including installation$765.40$1,530.80
484EASite Benches including installation$1,592.06$6,368.24
494EA6' Picnic Tables including installation$1,471.06$5,884.24
506EA8' Picnic Tables including installation$2,087.62$12,525.72
518EA8' ADA Picnic Tables including installation$1,459.97$11,679.76
528EALitter Receptacles including installation$1,131.54$9,052.32
534EASoccer Goals - Fields 3 & 4 $4,645.75$18,583.00
544EASoccer Goals - Fields 1 & 2 $4,645.75$18,583.00
551EADrinking Fountain including Water Line & Sump - Fields 3 & 4 $12,126.75$12,126.75
561EADrinking Fountain including Water Line & Sump - Fields 1 & 2 $11,902.35$11,902.35
57130EALarge Trees (65 gal.) - All Site Except West Parking Interior$528.00$68,640.00
5818EALarge Trees (65 gal.) - West Parking Interior$529.00$9,522.00
59648EAShrubs (screening and interior and buffer)$18.32$11,871.36
603,000SFPlanting Bed Prep. - Misc.$5.54$16,620.00
61290,000SFHydromulch Outside of Fields - All Site Except West Parking$0.11$31,900.00
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
6225,000SFHydromulch Outside of Fields - West Parking$0.11$2,750.00
631LSPlay Area including Structure, Surfacing, Drainage, etc.$149,226.00$149,226.00
642EASmall Pavilion including Structure, Lighting, etc.$35,654.65$71,309.30
657,300SYWest Parking Lot (210 spaces) and Drives - Concrete including Curb$57.88$422,524.00
66454LFWest Parking Lot Sawtooth Curb$21.34$9,688.36
671LSWest Parking Lot Pavement Striping & Wheelstops$8,177.54$8,177.54
681LSSports Field Lighting - Fields 1 and 2 (6 Poles with Fixtures LED)$344,755.40$344,755.40
6918EAWest Parking Lot Lighting$6,132.69$110,388.42
702EABollard Type 1$1,402.50$2,805.00
711LSEntry Drive Culvert and Wing Walls$166,650.00$166,650.00
721,330LFParking Planting - Conc. Mow Strip$14.00$18,620.00
731,230LFBuffer Planting - Conc. Mow Strip$14.06$17,293.80
741LSDrainage Flume and Rip-Rap$2,805.00$2,805.00
751LSLarge Group Pavilion including Structure, Slab, Columns, Lighting$142,898.47$142,898.47
761LS Sports Field Lighting - Athletic Fields (LED System) (LINE ITEMS 13,16&68 ARE LED)$0.00$0.00
Total Bid Alternate:$2,527,798.13
$5,692,727.34
TOTAL PROJECT (base total + alternatives + bonds)
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.
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. -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.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business 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 company named above 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. 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
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: CD6A6944-E010-4363-A127-F9688957DDE3
Certificate Of Completion
Envelope Id: CD6A6944E0104363A127F9688957DDE3Status: Sent
Subject: City Council Docusign Item - 6671 REVISED 2 Construction of G. Roland Vela Athletic Complex
Source Envelope:
Document Pages: 86Signatures: 4Envelope Originator:
Certificate Pages: 6Initials: 0Jamie Cogdell
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-06:00) Central Time (US & Canada)Jamie.Cogdell@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: OriginalHolder: Jamie CogdellLocation: DocuSign
5/4/2018 11:16:37 AM Jamie.Cogdell@cityofdenton.com
Signer EventsSignatureTimestamp
Jamie CogdellSent: 5/4/2018 11:20:18 AM
Completed
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Using IP Address: 129.120.6.150
City Of Denton
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Electronic Record and Signature Disclosure:
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Johnny GannSent: 5/4/2018 11:22:54 AM
jgann@nrockconstruction.comViewed: 5/4/2018 11:26:15 AM
PresidentSigned: 5/4/2018 11:27:41 AM
North Rock Construction
Using IP Address: 47.51.195.122
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Electronic Record and Signature Disclosure:
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Larry CollisterSent: 5/4/2018 11:27:45 AM
larry.collister@cityofdenton.comViewed: 5/4/2018 11:50:39 AM
First Assistant City AttorneySigned: 5/4/2018 11:50:45 AM
City of Denton
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Electronic Record and Signature Disclosure:
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Tabitha MillsopSent: 5/4/2018 11:50:47 AM
tabitha.millsop@cityofdenton.com
City of Denton
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Todd Hileman
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Accepted: 7/25/2017 11:02:14 AM
ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21
Jennifer Walters
jennifer.walters@cityofdenton.com
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Sherri ThurmanSent: 5/4/2018 11:27:44 AM
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City of Denton
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Jane Richardson
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Jennifer Bridges
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Jane Richardson
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Drew Huffman
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Electronic Record and Signature Disclosure
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-584,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,
authorizingtheCityManagertoexecuteaProfessionalServicesAgreementwithFreese&Nichols,Inc.,to
performconstructionprojectmanagementfortheG.RolandVelaAthleticComplex;andprovidinganeffective
date(RFQ6590-002-ProfessionalServicesAgreementforprojectmanagementawardedtoFreese&Nichols,
Inc. in the not-to-exceed amount of $188,909).
City of DentonPage 1 of 1Printed on 5/4/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal corporation,
authorizing the City Manager to execute a Professional Services Agreement with Freese & Nichols, Inc.,to
perform construction project management for the G. Roland Vela AthleticComplex; and providing an
effective date (RFQ6590-002-Professional Services Agreement for project managementawarded to Freese
& Nichols, Inc.in thenot-to-exceed amount of $188,909). The $188,909 contract amount is approximately
3.3% of the cost ($5,692,727) of the project.
BACKGROUND
The Vela Athletic Complex originated in the 2005 Capital Improvement Program (CIP).Since then,the
project has evolved in scope and the physical location of the athletic complex has changed. In October 2012,
a 26-acre tract of land located along Riney Road and State Highway 77 was purchased by the City as the
location for the Complex. In July 2013, Dunaway & Associates was selected as the design firm to design
and engineer the Complex.
The final design for the Vela Athletic Complex includes four lighted adult multi-use fields, a restroom
facility, concession stand, a playground, and several pavilion areas, fencing, and a parking lot. Dueto the
complexities, magnitude, and high profile nature of this projectthe City Manager’s Office recommends
retaining a firm experienced in project management. Outsourcing the project management will bring a level
of expertise needed to provide accountability on the Contractor’s work, minimize additional delays, and
avoid construction cost overruns for the project. City staff and the Contractor, North Rock Construction
LLC, have established an aggressive schedule for completing the project.
The project management scope of services includes, but not limited to:
Regular meetings with City representatives to review and provide updates on the project status
Site visits to observe progress and quality of work is in accordance with the construction
contract documentation
Review of material certified test reports
Establish procedures for administering constructive changes / prepare documentation for
contract modifications
Maintain project documentation
Review payment requests
Conduct final review ofthe project for conformance of compliance
Request for Qualifications for professional engineering services were solicited using the City’s formal
solicitation process. City Council approved a pre-qualified list of engineering firms on March 6, 2018
(Ordinance 2018-331). Freese & Nichols, Inc., is the most qualified firm for these services.
PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS)
On March 6, 2018 Request for Qualifications (RFQ) 6590 was approved by City Council to establish a pre-
qualified list of professional engineering service providers. (Ordinance 18-331).
RECOMMENDATION
Award a professional services agreementwith Freese & Nichols, Inc.,for construction project management
services in thenot-to-exceed amount of $188,909.The $188,909 contract amount is approximately 3.3%
of the cost ($5,692,727) of the project.
PRINCIPAL PLACE OF BUSINESS
Freese & Nichols, Inc.
Fort Worth, Texas
ESTIMATED SCHEDULE OF PROJECT
Approximately 10months from notice to proceed.
FISCAL INFORMATION
These services will be funded from projectaccount 400171444.1360.40100.Requisition #137989 has been
entered in the Purchasing software systemin the amount of $188,909.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road map that will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this
specific City Council agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Safe, Liveable & Family-Friendly Community
Related Goal:4.3 Provide quality, diverse, and accessible neighborhood services for
the community
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Contract
Exhibit 3: Ordinance
Respectfully submitted:
Karen Smith, 940-349-7100
Purchasing Manager
For information concerning this acquisition, contact: Dean Hartley (940) 349-8243.
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PROFESSIONAL SERVICES AGREEMENT
G. ROLAND VELA ATHLETIC COMPLEX CONSTRUCTION PHASE
PROJECT MANAGEMENT
FILE 6590-002
THIS 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
Freese and
Nichols, Inc., with its corporate office at 4055 International Plaza, Suite 200, Ft. Worth, Texas 76109
hereinafter called Construction Project Management
authorized representatives.
In consideration of the covenants and agreements herein contained, the parties hereto do mutually
agree as follows:
SECTION 1
EMPLOYMENT OF CONSTRUCTION PROJECT MANAGEMENT
The Owner hereby contracts with the Construction Project Management Professional, a
licensed Texas architect or engineer, as an independent contractor. The Construction Project
Management Professional hereby agrees to perform the services as described herein and in the
Proposal, the General Conditions, and other attachments to this Agreement that are referenced in
Section 6, in connection with the Project. The Project shall include, without limitation, (describe the
Project in the space below or in an Exhibit A)
SECTION 2
COMPENSATION
The Owner shall compensate the Construction Project Management Professional as follows:
2.1 BASIC SERVICES
2.1.1 For Basic Services the total compensation shall be $188,909, as per Exhibit B.
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 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.
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SECTION 4
CONTRACT TERM
The contract term shall become effective from date of award or notice to proceed as determined by the
City of Denton Purchasing Department. The contract shall remain effective until completion and
acceptance of the Construction Project Management project by an authorized representative of the
Owner.
TIME OF COMPLETION:
Freese and Nichols, Inc., is authorized to commence work on the Project upon execution of this
Agreement and agrees to complete the services in accordance with the following schedule: Services to
begin at the time of the Pre-construction conference and continue for a period of 9 months from that
date or until substantial completion.
and Nichols, Inc., shall be entitled to adjust contract schedule consistent with the number of days of
delay. These delays may include but are not limited to delays in Owner or regulatory reviews, delays
on the flow of information to be provided to Freese and Nichols, Inc., governmental approvals, etc.
These delays may result in an adjustment to compensation as outlined on the face of this Agreement
and in Attachment CO.
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SECTION 5
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 a 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. Complete and sign the Form 1295
6. Email the 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
website within seven business days.
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SECTION 6
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:
1. City of Denton General Conditions to Agreement for Architectural or Engineering Services.
2.
3. Exhibits A through B.
The parties agree to transact business electronically. Any statutory requirements that certain terms be
in writing will be satisfied using electronic documents and signing. Electronic signing of this document
will be deemed an original for all legal purposes.
This Agreement is signed by the parties hereto effective as of the date first above written.
CITY OF DENTON
BY: __________________________
TODD HILEMAN
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
DESIGN FIRM
BY: __________________________
(Signature)
2018-329691 .
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
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CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
1.1 and proposal (the
ign Professional's employees and consultants as
enumerated in Articles 2 and 3 of these General Conditi
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
t 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 rvices 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.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 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.
2.3.2 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.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 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.
2.4.2 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.
2.4.3 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.
2.4.4 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
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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 Construction
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 Agreement as may be
amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the
Standard Specifications for Public Works Construction by the North Central Texas Council of 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 furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or
payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in 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 omis-
sions. 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 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 cor-
rectable 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 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 judgment 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
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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 making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance
by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this
Agreement and in the absence of 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 Construction Documents during
the Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
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.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 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;
2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or
3. due to changes required as a result of the Owner's failure to render decision in a timely manner.
3.3.2 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.
3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with
the replacement of such work.
3.3.5 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.
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3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work.
3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto.
3.3.8 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.
3.3.9 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
3.3.9.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites.
3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the
Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof.
3.4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner.
3.4.7 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.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities.
3.4.12 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.
3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related
equipment.
3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty
period of the Contract for Construction.
3.4.15 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.
3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural
practice.
3.4.17 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 con-
struction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional.
3.4.18 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
3.4.18.
ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the tives, (2) schedule and design
constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci-
fically described in Subsection 2.2.1.
4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies
related to all of these costs.
4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this
Agreement.
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4.4 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 furnish 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 furnish 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 re-
sistivity 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 furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials,
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 forcon-
tingencies 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.
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 construction 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 submission
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
t 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
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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 im
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 cooperate 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.
7.3 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.
7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non-
performance 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, holidays,
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.
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.
8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1 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.
8.3.2 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.
8.3.3 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.
8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
8.4.1 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.
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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
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
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 a
Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or
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.
11.3 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
11.4 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 extels shall not include the Owner's
confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi-
dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project.
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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.
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EXHIBIT A
SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER
ARTICLE I
BASIC SERVICES:Freese and Nichols, Inc. (FNI)shall render the following professional services in
connection with the development of the Project:
A.CONSTRUCTION PHASE PROJECT MANAGEMENT
FNI will endeavor to protect Ownerin providing these services however, it is understood that FNI
does not guarantee the Contractor’s performance, nor is FNI responsible for supervision of the
Contractor’s operation and employees. FNI shall not be responsible for the means, methods,
techniques, sequences or procedures of construction selected by the Contractor, or any safety
precautions and programs relating in any way to the condition of the premises, the work of the
Contractor or any Subcontractor. FNI shall not be responsible for the acts or omissions of any person
(except its own employees or agents) at the Project site or otherwise performing any of the work of
the Project.
1.Assist Ownerbyconducting pre-construction conference(s) with the Contractor(s), review
construction schedules prepared by the Contractor(s) pursuant to the requirements of the
construction contract andobtaina proposed estimate of monthly cash of the Project from
information providedby the Construction Contractor.
2.Establish communication procedures with the Ownerand contractor. Submit weekly progress
reports to the City on each Wednesday reporting in general on the progress of work. Weekly
reports will attempt to estimate the amount of work performed by the contractor as it relates to the
project quantities and costs. Submit monthly progress updates to the City reflecting the project
progress including a summary of the financials and pending/processed contract modifications.
Submit Site Visit Memorandums for each site visit made by FNI documenting on-going daily work
progress and conversations with the contractor.
3.Establish and maintain a project documentation system(FNiManager)consistent with the
requirements of the construction contract documents. Monitor the processing of contractor’s
submittals and provide for filing and retrieval of project documentation. Produce monthly reports
indicating the status of all submittals in the review process. FNI will coordinate the reviewof
contractor’s submittals, including, requests for information, modification requests, shop drawings,
schedules, and other submittals with the contractor and engineer of record. FNI will answer those
RFIs that we can that are not necessary for the engineer of record to address. Any RFI, in FNI’s
opinion, that needs the engineer of record’s attention and response will be coordinated with the
engineer of record. Monitor the progress of the contractor in sending and processing submittals
to see that documentation is being processed in accordance with schedules.
4.Based on FNI’s observations as an experienced and qualified design professional and review of
the Payment Requests and supporting documentation submitted by Contractor, determine the
amount that FNI recommends Contractor be paid on monthly and final estimates, pursuant to the
General Conditions of the Construction Contract.
5.Make sitevisits to the site (as distinguished from the continuous services of a Resident Project
Representative) to observe the progress and the quality of work and to attempt to determine in
general if the work is proceeding in accordance with the Construction Contract Documents. In
this effort FNI willendeavor to protect the Owneragainst defects and deficiencies in the work of
Contractors and will report any observed deficiencies to Owner. Visits to the site in excess of the
specified numberor specified total hoursare an additional service.
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OWNER______
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
a.Scoped site visits: FNI will visits the site weekly making up to three site visits per week
for a total average weekly 18 hours at the project site.
6.Notify the contractor of non-conforming work observed on site visits. Review quality related
documents provided by the contractor such as test reports, equipment installation reports or other
documentation required by the Construction contract documents.
7.Review materials testing Certified Test Reports for project compliance. The cost of such quality
control(materials testing)shall be paid by Ownerand is not included in the services to be
performed by FNI.
8.Interpret the drawings and specifications for Ownerand Contractor(s)with assistance of the
engineer of record, ifneeded. Investigations, analyses, and studies requested by the Contractor(s)
and approved by Owner, for substitutions of equipment and/or materials or deviations from the
drawings and specifications is an additional service.
9.Establish procedures for administering constructive changes to the construction contracts. Process
contract modifications and negotiate with the contractor on behalf of the Ownerto determine the
cost and time impacts of these changes. Prepare change order documentation for approved
changes for execution by the Owner. Documentation of field orders, where cost to Owneris not
impacted, will also be prepared. Investigations, analyses, studies or design for substitutions of
equipment or materials, corrections of defective or deficientwork of the contractor or other
deviations from the construction contract documents requested by the contractor and approved by
the Owner are an additional service. Substitutions of materials or equipment or design
modifications requested by the Ownerare an additional service.
10.Prepare documentation for contract modifications required to implement modifications in the
design of the project. Receive and evaluate notices of contractor claims and make
recommendations to the Owneron the merit and value of the claim on the basis of information
submitted by the contractor or available in project documentation. Endeavor to negotiate a
settlement value with the Contractor on behalf of the Ownerif appropriate. Providing these
services to review or evaluate construction contractor(s) claim(s), supported by causes not within
the control of FNI are an additional service.
11.Conduct, in company with Owner’srepresentative, a final review of the Project for conformance
with the design concept of the Project and generalcompliance with the Construction Contract
Documents. Prepare a list of deficiencies to be corrected by the contractor before recommendation
of final payment. Assist the City in obtaining legal releases, permits, warranties, spare parts, and
keys from the contractor. Review and comment on the certificate of completion and the
recommendation for final payment to the Contractor(s). Visiting the site to review completed work
in excess of two trips are an additional service.
12.Coordinate the project close-out process with the City and the Contractor providing contractor as-
built drawings.
ARTICLE II
ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by Owner, which
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OWNER______
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are not included in the above described basic services, are described as follows:
A.Field surveying required for the preparation of designs and drawings.
B.Field layouts or the furnishing of construction line and grade surveys.
C.GIS mapping services or assistance with these services.
D.Making property, boundary and right-of-way surveys, preparation of easement and deed descriptions,
including title search and examination of deed records.
E.Providing services to investigate existing conditions or facilities, or to make measured drawings
thereof, or to verify the accuracy of drawings or other information furnished by Owner.
F.Providing renderings, model, and mock-ups requested by the Owner.
G.Making revisions to drawings, specifications or other documents when such revisions are 1) not
consistent with approvals or instructions previously given by Owneror 2) due to other causes not
solely within the control of FNI.
H.Providing consultation concerning the replacement of any Work damaged by fire or other cause during
the construction, and providing services as may be required in connection with the replacement of such
Work.
I.Investigations involving consideration of operation, maintenance and overhead expenses, and the
preparation of rate schedules, earnings and expense statements, feasibility studies, appraisals,
evaluations, assessment schedules, and material audits or inventories required for certification of force
account construction performed by Owner.
J.Preparing applications and supporting documents for government grants, loans, or planning advances
and providing data for detailed applications.
K.Providing shop, mill, field or laboratory inspection of materials and equipment. Observe factory tests
of equipment at any site remote to the project or observing tests required as a result of equipment
failing the initial test.
L.Conducting pilot plant studies or tests.
M.Preparing Operation and Maintenance Manuals or conducting operator training.
N.Preparing data and reports for assistance to Ownerin preparation for hearings before regulatory
agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and
preparations therefore before any regulatory agency, court, arbitration panel or mediator.
O.Furnishing the services of a Resident Project Representative to act as Owner’son-site representative
during the Construction Phase. The Resident Project Representative will act as directed by FNI in
order to provide more extensive representation at the Project site during the Construction Phase.
Through more extensive on-site observations of the work inprogress and field checks of materials and
equipment by the Resident Project Representative and assistants, FNI shall endeavor to provide further
protection for Owneragainst defects and deficiencies in the work. Furnishing the services of a
Resident Project Representative is subject to the provisions of Article I, D and Attachment RPR.
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OWNER______
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
If Ownerprovides personnel to support the activities of the Resident Project Representative who is
FNI or FNI’s agent or employee, the duties, responsibilities and limitations of authority of such
personnel will be set forth in an Attachment attached to and made a part of this Agreementbefore the
services of such personnel are begun. It is understood and agreed that such personnel will work under
the direction of and beresponsible to the Resident Project Representative. Owneragrees that whenever
FNI informs him in writing that any such personnel provided by the Ownerare, in his opinion,
incompetent, unfaithful or disorderly, such personnel shall be replaced.
P.FurnishingSpecial Inspections required under chapter 17 of the International Building Code.These
Special Inspections are often continuous, requiring an inspector dedicated to inspection of the
individual work item, and they are in additional to General Representation and Resident
Representation services noted elsewhere in the contract.These continuous inspection services can be
provided by FNI as an Additional Service.
Q.Preparation of Conformed or “As Bid” plans and specifications for use during the construction phase.
These documents shall involve the incorporation of addenda items into the Contract Documents
through modification of the electronic files and reprinting of the plans and specifications inclusive of
the incorporated changes.
R.Assisting Ownerin 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).
S.Performing investigations, studies and analysesof substitutions of equipment and/or materials or
deviations from the drawings and specifications.
T.Assisting Ownerin the defense or prosecution of litigation in connection with or in addition to those
services contemplated by this Agreement. Such services, if any, shall be furnished by FNI on a fee
basis negotiated by the respective parties outside of and in addition to this Agreement.
U.Providing environmental support services including the design and implementation of ecological
baseline studies, environmental monitoring, impact assessment and analyses, permitting assistance,
and other assistance required to address environmental issues.
V.Performing investigations, studies, and analysis of work proposed by construction contractors to
correct defective work.
W.Design, contract modifications, studies or analysis required to comply with local, State, Federal or
other regulatory agencies that become effective after the date of this agreement.
X.Services required to resolve bid protests or to rebid the projectsfor any reason.
Y.Visits to the site in excess of the number of trips included in Article I for periodic site visits,
coordination meetings, or contract completion activities.
Z.Any services required as a result of default of the contractor(s) or the failure, for any reason, of the
contractor(s) to complete the work within the contract time.
AA.Providing services after the completion of the construction phase not specifically listed in Article I.
BB.Providing basic or additional services on an accelerated time schedule. The scope of this service
include cost for overtime wages of employees and consultants, inefficiencies in work sequence and
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plotting or reproduction costs directly attributable to an accelerated time schedule directed by the
Owner.
CC.Providing services made necessary because of unforeseen, concealed, or differing site conditions or
due to the presence of hazardous substances in any form.
DD.Providing services to review or evaluate construction contractor(s) claim(s), provided said claims are
supported by causes not within the control of FNI.
EE.Providing value engineering studies or reviews of cost savingsproposed by construction contractors
after bids have been submitted.
FF.Preparing statements for invoicing or other documentation for billing other than for the standard
invoice for services attached to this professional services agreement.
GG.Provide follow-up professional services during Contractor’s warranty period.
HH.Provide Geotechnical investigations, studies and reports.
ARTICLE III
TIME OF COMPLETION:FNI is authorized to commence work on the Project upon execution of this
Agreementand agrees to complete the services in accordance with the following schedule:Services to begin
at the time of the Pre-construction conference and continue for a period of 9 months from that date.
If FNI’s services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule
consistent with the number of days of delay. These delays may include but are not limited to delays in Owner
or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc.
These delays may result in an adjustment to compensation as outlined on the face of this Agreementand in
Attachment CO.
ARTICLE IV
RESPONSIBILITIES OF Owner:Ownershall perform the following in a timely manner so as not to delay
the services of FNI:
A.Designate in writing a person to act as Owner’srepresentative with respect to the services to be
rendered under this Agreement. Such person shall have contract authority to transmit instructions,
receive information, interpret and define Owner’spolicies and decisions with respect to FNI’s services
for the Project.
B.Provide all criteria and full information as to Owner’srequirements for the Project, including design
objectives and constraints, space, capacity and performance requirements, flexibility and
expandability, and any budgetary limitations; and furnish copies of all design and construction
standards which Ownerwill require to be included in the drawings and specifications.
C.Assist FNI by placing at FNI’s disposal all available information pertinent to the Project including
previous reports and any other data relative to design or construction of the Project.
D.Arrange for access to and make all provisions for FNI to enter upon public and private property as
required for FNI to perform services under this Agreement.
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OWNER______
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
E.Examine all studies, reports, sketches, drawings, specifications, proposals and other documents
presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as Owner
deems appropriate for such examination and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of FNI.
F.Furnish approvals and permits from all governmental authorities having jurisdiction over the Project
and such approvals and consents from others as may be necessary for completion of the Project.
G.Ownershall make or arrange to have made all subsurface investigations,including but not limited to
borings, test pits, soil resistivity surveys, and other subsurface explorations. Ownershall also make
or arrange to have made the interpretations of data and reports resulting from such investigations. All
costs associated with such investigations shall be paid by Owner.
H.Provide such accounting, independent cost estimating and insurance counseling services as may be
required for the Project, such legal services as Ownermay require or FNI may reasonably request with
regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such
auditing service as Ownermay require to ascertain how or for what purpose any Contractor has used
the moneys paid under the construction contract, and such inspection services as Ownermay require
to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order
applicable to their furnishing and performing the work.
I.Ownershall determine, prior to receipt of construction bid, if FNI is to furnish Resident Project
Representative service so the Bidders can be informed.
J.If Ownerdesignates a person to serve in the capacity of Resident Project Representative who is not
FNI orFNI’s agent or employee, the duties, responsibilities and limitations of authority of such
Resident Project Representative(s) will be set forth in an Attachment attached to and made a part of
this Agreementbefore the Construction Phase of the Project begins. Said attachment shall also set
forth appropriate modifications of the Construction Phase services as defined in Attachment SC,
Article I, C, together with such adjustment of compensation as appropriate.
K.Attend the pre-bid conference, bid opening, preconstruction conferences, construction progress and
other job related meetings and substantial completion inspections and final payment inspections.
L.Give prompt written notice to FNI whenever Ownerobserves or otherwise becomes aware of any
development that affects the scope or timing of FNI’s services, or any defect or nonconformance of
the work of any Contractor.
M.Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of this
Agreementor other services as required.
N.Bear all costs incident to compliance with the requirements of this Article IV.
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OWNER______
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
ARTICLE V
DESIGNATED REPRESENTATIVES: FNI and Ownerdesignate the following representatives:
Owner’s Designated Representative–
Owner’s Accounting Representative–
FNI’s DesignatedRepresentative –Chris Jones, 4055 International Plaza, Suite 200, Fort Worth, Texas
76109,caj@freese.com, 817-735-7291
FNI’s Accounting Representative –Jana Collier, 4055 International Plaza, Suite 200, Fort Worth, Texas
76109,jvc@freese.com, 817-735-7300
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OWNER______
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.
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. -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.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business 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 company named above 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. 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
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 1E3E5FB1-3396-4FB4-AEFF-BAB9986398B2
Exhibit
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after
the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
Name of vendor who has a business relationship with local governmental entity.
1
2
Check this box if you are filing an update to a previously filed questionnaire.
th
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7 business
day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3
Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
Certificate Of Completion
Envelope Id: 1E3E5FB133964FB4AEFFBAB9986398B2Status: Sent
Subject: Please DocuSign: City Council Contract 6590-002 (G. Roland Vela Athletic Complex Proj. Mgmt)
Source Envelope:
Document Pages: 26Signatures: 5Envelope Originator:
Certificate Pages: 6Initials: 0Jody Word
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-08:00) Pacific Time (US & Canada)jody.word@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: OriginalHolder: Jody WordLocation: DocuSign
4/4/2018 4:05:47 PM jody.word@cityofdenton.com
Signer EventsSignatureTimestamp
Jody WordSent: 4/4/2018 4:12:53 PM
Completed
jody.word@cityofdenton.comViewed: 4/4/2018 4:13:00 PM
BuyerSigned: 4/4/2018 4:15:19 PM
Using IP Address: 129.120.6.150
City of Denton
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Lawrence P. EckersleySent: 4/4/2018 4:15:22 PM
lpe@freese.comViewed: 4/5/2018 8:26:53 AM
Freese and Nichols, Inc.Signed: 4/6/2018 8:05:46 AM
Security Level: Email, Account Authentication
Using IP Address: 97.75.108.6
(None)
Electronic Record and Signature Disclosure:
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Larry CollisterSent: 4/6/2018 8:05:50 AM
larry.collister@cityofdenton.comResent: 4/19/2018 9:04:13 AM
First Assistant City AttorneyResent: 4/25/2018 12:20:29 PM
City of DentonViewed: 4/25/2018 1:23:44 PM
Using IP Address: 129.120.6.150
Security Level: Email, Account Authentication Signed: 4/25/2018 1:23:58 PM
(None)
Electronic Record and Signature Disclosure:
Accepted: 9/26/2017 12:27:28 PM
ID: 01f5f868-f109-4e29-ad49-21db9046c882
Tabitha MillsopSent: 4/25/2018 1:24:01 PM
tabitha.millsop@cityofdenton.com
City of Denton
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Todd Hileman
Todd.Hileman@cityofdenton.com
Security Level: Email, Account Authentication
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Electronic Record and Signature Disclosure:
Accepted: 7/25/2017 9:02:14 AM
ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21
Signer EventsSignatureTimestamp
Jennifer Walters
jennifer.walters@cityofdenton.com
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In Person Signer EventsSignatureTimestamp
Editor Delivery EventsStatusTimestamp
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Carbon Copy EventsStatusTimestamp
Sherri ThurmanSent: 4/6/2018 8:05:49 AM
sherri.thurman@cityofdenton.com
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Jane Richardson
jane.richardson@cityofdenton.com
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Electronic Record and Signature Disclosure:
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Jennifer Bridges
jennifer.bridges@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
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Jane Richardson
jane.richardson@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
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Drew Huffman
drew.huffman@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Dawn Wilson
Dawn.Wilson@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Carbon Copy EventsStatusTimestamp
Jamie Cogdell
jamie.cogdell@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Notary EventsSignatureTimestamp
Envelope Summary EventsStatusTimestamps
Envelope SentHashed/Encrypted4/25/2018 1:24:02 PM
Payment EventsStatusTimestamps
Electronic Record and Signature Disclosure
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-756,Version:1
AGENDA CAPTION
Consider approval of a resolution of the City Council of the City of Denton, Texas approving a policy and
application to review housing tax credit requests; and providing an effective date.
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Public Affairs and IGR Community Development
CM/ DCM/ ACM: Bryan Langley, Deputy City Manager
DATE: May 8, 2018
SUBJECT
Consider approval of a resolution of the City of Denton, Texas adopting a Housing Tax Credit (HTC)
Request for Support Policy and Housing Tax Credit (HTC) Application Request Form; and declaring an
effective date.
BACKGROUND
Over the past several months, staff has developed and discussed with Council and other interested entities,
a review process for proposed 9% and 4% Housing Tax Credit (HTC) projects. Current Texas
Department of Housing and Community Affairs (TDHCA) requirements include submission from
developers of either a resolution of support or of no objection from the municipality in which the project
is located. Council requested staff research how other municipalities consider proposed HTC projects and
use the information in the development of the local review process. It was requested that the new process
streamline the review, support the establishment of specific applicant expectations, and increase
transparency.
On October 10, 2017, staff presented an updated draft policy and application process. On December 4,
2017 a joint meeting of the Council and the Denton Housing Authority was held to discuss the proposed
draft application and policy. Also in December 2017, TDHCA released its 2018 timeline for 9% requests
with pre-applications due by January 9, 2018 and final applications due by March 1, 2018. This required
developers to submit any resolutions of support from cities with their final application by March 1. Due to
the quick timeline, staff notified Council of the intent to use the draft policy and application with
interested developers to test out the application process and determine any changes needed to streamline
the process. Staff utilized the input from developers regarding the application process to make additional
revisions. Developers expressed support for having a tool that cle
seeking resolutions of support for HTC applications.
Based on comments and suggestions received from City Council, various housing developers, and the
staff and board members of the Denton Housing Authority, a revised draft of the Housing Tax Credit
(HTC) Request for Support Policy and Housing Tax Credit (HTC) Application Request Form was
presented to Council on April 24, 2018. City Council did recommend a revision to one of the listed policy
preferences. Council direction was to move forward with a resolution for approval of the policy and
application request form.
RECOMMENDATION
It is recommended that City Council approve the resolution to adopt the Housing Tax Credit (HTC)
Request for Support Policy and Housing Tax Credit (HTC) Application Request Form.
STRATEGIC PLAN RELATIONSHIP
-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: Support citizens in need through partnerships with area social services agencies and
the use of federal, state, and regional resources.
EXHIBITS
Exhibit 1 Agenda Information Sheet
Exhibit 2 Resolution
Respectfully submitted:
Sarah Kuechler
Director of Public Affairs and IGR
Prepared by:
Barbara Ross
Community Development Manager
Exhibit 2
Exhibit 2
ExhibitA
CITYOFDENTON
HOUSINGTAXCREDIT(HTC)
REQUESTFORSUPPORTPOLICY
PolicyStatement:TomeetthehousinganddevelopmentobjectivesoftheCityofDenton,itshallbethe
/źƷǤƭpolicytoanalyzeprojectsrequestingsupportforproposedHousingTaxCredits(HTC).Suchanalysis
istodetermineiftheprojectscomplywithcertainprinciplesandpoliciesinthe/źƷǤƭDenton2030Plan
andthe5YearConsolidatedPlanforHousingandCommunityDevelopmentaswellasvariousother
master,strategic,andredevelopmentorneighborhoodplansadoptedbytheCityofDenton.Thegoalof
thisanalysisisto(a)establishifHTCprojectsmeritlocalsupport,and(b)prioritizeHTCsubmissionsif
morethanasingleproposalisreceivedduringanevaluationperiod.TheCommunityDevelopment
Divisionservesasthe/źƷǤƭprimarystaffandpointofcontactforallHTCprograms.
EvaluationCriteria:TheCityofDentoniscommittedtothegoalofimprovingthequalityoflifeintheCity,
itsneighborhoodsandforitsresidents.Aspartofthiscommitmenttoacomprehensivecommunity
developmentandimprovementprogram,theCitysupportsthedevelopmentofdecent,safe,sanitary,
andaffordablehousingoptionsthatprovidesfullandequalaccesstoallpersons.
PreferencesinevaluationofprojectsforconsiderationofCitysupportarelistedbelow:
Acquisition,rehabilitationorrenovationofexistingaffordablehousing
SeniorHousingdevelopments
MixofAffordableandMarketRate
DistancebetweenotherHTCprojects
Whethertheproposeddevelopmentwillbesubjecttopropertytaxordemonstratessignificant
investmentintothecommunity
Designatingsetasideunitsforsupportivehousingprogramstohousevulnerablepopulations
includingpeopleexperiencinghomelessnesshomeless,peoplewithmentalillness,chronic
healthconditions,thedisabled,seniors,and/orvictimsofdomesticviolence.
TheCityofDentonreservestherighttodenyapplicationsthatdonotcoincidewiththe/źƷǤƭHousing
TaxCreditRequestforSupportPolicy,variousstrategicandmasterplans,orpolicydirectionfromthe
DentonCityCouncil.
taff,eachapplicantrequestingsupport
RequiredInformation:Beforeaprojectwillbeevaluatedbythes
mustsubmittheCityof5ĻƓƷƚƓƭHTCRequestforSupportapplicationwithallattachments.The
applicationandlistofrequireddocumentsareavailableonthe/źƷǤƭwebsiteatwww.cityofdenton.com.
AnnualSchedule:TheCityofDentonwillestablishandannounceeachyearanannualscheduleof
deadlinesandotherdatesofimportanceforconsiderationofCitysupportforLIHTCprojects.Theschedule
isavailableonthe/źƷǤƭwebsiteatwww.cityofdenton.com.
MeetingwithCityStaff:Nolessthanonemeetingwiththeapplicant,developer,sponsor,andrelevant
Approved:Resolutionon,2018
CITYOFDENTON
HOUSINGTAXCREDIT(HTC)
REQUESTFORSUPPORTPOLICY
Citystaffwilltakeplacetodiscusstheproposedprojectingeneral,andanyissuesandconcernsidentified
intheapplicationinparticular.
PresentationtoCityCouncil:TheApplicantwillberequestedtogiveapresentationtotheCity
Councilregardingtheirproposedproject.PresentationswillgenerallybescheduledduringaCity
CouncilWorkSessioninthemonthofFebruary.
SubstantialChanges:ShouldaprojectwhichreceivessupportfromtheCityhaveasubstantialchange
including,butnotlimitedto,thefollowingbeforethestartofconstruction,theDevelopermustnotifythe
CityofDentoninwritingandrequestanewcommitmentofsupport:
ΘNumberofunits
NumberofAffordableUnitsorAffordabilityperiod
ΘTypeofunits
ΘTargetpopulation
ΘAmenities
ΘTypeofconstruction
ΘDeveloper/sponsor/owner
ΘFinalsitedevelopmentplan
AdministrationoftheHTCProgram:TheHTCprogramintheStateofTexasisadministeredbytheTexas
DepartmentofHousing&CommunityAffairs.TheCityofDentonhasnoresponsibilityforapplication
approvalforHTCprojectsorfortheadministrationoftheHTCprogram.
DevelopmentReview:ConsiderationoftheğƦƦƌźĭğƓƷƭrequestforaResolutionofSupportora
ResolutionofNoObjectioninnowayimpactsthe/źƷǤƭrightstoapprove,disapprove,ormodifythe
developersproposedsiteplansortomodifythezoningfortheproposeddevelopment.
Page 2 of 2
ExhibitB
CityofDenton
HousingTaxCredit(HTC)RequestforSupport
Application
Pleasenote:TheCityofDentonreservestherighttodenyapplicationsthatdonotcoincidewiththe/źƷǤƭHousingTaxCredit
RequestforSupportandPolicy,variousstrategicandmasterplans,orpolicydirectionfromtheDentonCityCouncil.Beforea
projectwillbeevaluated,eachapplicantrequestingsupportmustsubmitacompletedapplicationwithallattachmentsin
accordancewiththetimelineprescribedherein.
1.PROJECTINFORMATION
LegalNameofDeveloper/Entity
NameofProposedDevelopment
Physicaladdressoftheproject
Censustract#CouncilDistrict#SchoolDistrict
GeneralSeniorSupportiveHousingSpecialPopulations
Projecttype:
OwnerDeveloperOther(listbelow):
ApplicantRole:
9%HTC4%HTC
HousingTaxCreditapplicationfor:
ofSupportStatingNoObjection
ApplicantisrequestingCouncilResolution:
NewconstructionRenovationAcquisition/Redevelopment
Istheproperty:
Totalnumberofunits:
#ofAffordableUnits
#ofTotalUnits#ofMarketRateUnits$EstimatedRent#SFofEachUnit
#30%#50%MR
SRO*
1BR
2BR
3BR
TotalUnits 00000
0.0%0.0%0.0%0.0%
%ofTotal
LengthofAffordabilityontheProject:
*SingleRoomOccupancy
2.APPLICANTINFORMATION
Name
STZIP
City
Telephone
Contactperson
ContactEmail
ContactTelephone
#
FederalTaxID
DUNS#:
ForDevelopersandPartners,checkallthatapply:ForProfitNonprofitPublicHousingAuthority
Page1of4
Approved:Resolutionon,2018
CityofDenton
HousingTaxCredit(HTC)RequestforSupport
Application
Inthelasttenyears:
Yes
HaveyoudevelopedotherHousingTaxCreditprojects?
No
Ifyes,pleaselistprojectnamesandaddresses:
Yes
Haveyoudevelopedotheraffordablehousingprojects?
No
Ifyes,pleaselistprojectnamesandaddresses:
3.PROJECTNARRATIVE&ATTACHMENTCHECKLIST
Aprojectnarrativeandattachmentsmustbeattachedtothisapplicationandbrieflyaddress,ataminimum,eachofthefollowingitems:
a.
PreliminarySitePlanProvideapreliminarysiteplanfortheproposedproject;
b.
Locationmapͻğƌƌͼmultifamilydevelopmentshighlightingaffordablehousingwithintwomilesoftheproposedsite;
c.Censustractmapwithsiteidentified;
d.LetterofzoningverificationorstatusofrezoningrequestfromtheCityIncludealetterfromtheCityof5ĻƓƷƚƓƭDevelopment
ServicesDepartmentverifyingthatthecurrentzoningofthesitefortheproposedprojectiscompatiblewiththeanticipateduse,or
includedocumentationverifyingthatarequesttochangecurrentzoninghasbeensubmitted;
e.Supportand/oroppositionfromcommunityDescribetheimpacttheprojectisanticipatedtohaveonsurroundingneighborhoodand
involvementandsupportfromlocalstakeholdersandneighborhoodorganizations;includealistofstakeholdersandneighborhood
associationscontacted.Attachalllettersofsupportoroppositiontoyourprojectand/ordocumentationofeachnotification/response:
;
i.Letterofsupportand/oroppositionfromtheneighborhoodassociation
ii.Letterofsupportand/oroppositionfromtheschooldistrict(s)(ifprojectwillbetaxexempt);
)
iii.Letterofsupportand/oroppositionfromtheCounty(ifprojectwillbetaxexempt
f.
TDHCAselfscorePleaseattachTDHCASelfScoreMatrixSampleprovidedinAttachmentA.
Describetenantpopulation(s),restrictions(e.g.incomeoragerestrictions)andaccesstosupportiveservicesdemonstratedthrough
g.
provisionoforproximitytocommunityresourcesΑschools,libraries,publicfacilities,nonprofits,healthcareandfoodsecurity,public
;
transitetc.ifany,tobeprovidedtoormadeavailabletoresidents
Providealistofbasicamenitiesandunitamenitiesproposedfortheproject;
h.
i.DescribetheƦƩƚƆĻĭƷƭqualityofdesignandconstruction;
DemonstratetheƦƩƚƆĻĭƷƭcompatibilityandalignmentwiththeprioritiesstatedinthe/źƷǤƭComprehensivePlan,FutureLandUse
j.
Map,ConsolidatedPlan,andanyotherapplicablemaster,strategic,andredevelopmentorneighborhoodplansadoptedbytheCityof
4.FINANCIALNARRATIVE&ATTACHMENTCHECKLIST
Afinancialnarrativefortheprojectmustbeattachedtothisapplication.Pleaseaddress,ataminimum,eachofthefollowingitemsincluding
supportingattachments:
a.Projectproforma
b.AnnualAuditforeachpartner
c.
Describethetaxablestatusofthedevelopment.Indicatewhetherthedevelopmentwillbepayingpropertytaxesorifthedevelopment
willbetaxexempt;
Ifprojectwillbetaxexempt,provide:
d.
Aprojectedlossofpropertytaxes(toeachtaxingentityandintotal)overthe15yearperiod,andincludeassumptionsand
i.
comparablepropertiesutilized;
Acopyofthefiscalyearbudgetofthetaxexemptpartner;
ii.
iii.
Adetailedplanexplaininghowprojectedrevenuesareintendedtobeusedbythetaxexemptpartner;thisshouldprovide
sufficientexplanationtounderstandthestrategicplanfortheprojectedadditionalrevenueandhowitwillprovidean
enhancementorbenefittothecommunity.Theplanshouldalsoaddressanycommunityservicecontributionsandinvestments
plannedbythetaxexemptpartnerandforprofitdeveloper.
Page2of4
Approved:Resolutionon,2018
CityofDenton
HousingTaxCredit(HTC)RequestforSupport
Application
SUBMISSIONINFORMATION
5.
TheCommunityDevelopmentDivisionservesasthe/źƷǤƭprimarystaffandpointofcontractforallTDHCAprograms.Completed
applicationsshouldbesubmittedto:CommunityDevelopment601EHickorySuiteBDenton,TX76205oremailat:
community.development@cityofdenton.com
.
Beforeaprojectwillbeevaluated,eachapplicantrequestingsupportmustsubmitacompletedapplicationwithallattachments
CityofDenton2019ImportantDatesfor9%RequestforSupport*:
January2019:ApplicationDeadline
February2019:PresentationfromApplicant(s)atCityCouncilWorkSession
March2019:ConsiderationofResolution(s)atCityCouncilMeeting
BasedonannualdeadlinefromTDHCA,specificdatesaresubjecttochange.Pleasevisitww.cityofdenton.comforcurrentdeadlines.
*HousingTaxCredit4%RequestforSupportwillcompletethesamestepsabovebutmaybesubmittedyearround.
ApplicationsfortheRequestforSupportfor4%mustbesubmittedatleast60dayspriortowhenthelettermustbesubmittedbytheapplicanttoTDHCA.
ApplicantmustattendallCityCouncilmeetingswheretheseResolutionsarediscussed.Staffwillinformtheapplicant,usingthee
mailaddressesprovided,ofthemeetingdatesassoonastheyaredetermined.
CERTIFICATION
Theapplicant/developercertifiesthatthedataincludedinthisapplicationandtheexhibitsattachedistrueandcompletetothe
bestofmyknowledge.ThestatementsaremadeforthepurposeofobtainingaresolutionorresolutionsfromtheDentonCity
Council.IunderstandthatfalsestatementsmayresultinforfeitureofbenefitsandpossibleprosecutionbytheCityAttorney.
LegalNameofDeveloper/Entity
AuthorizedOfficerTitle
SignatureDate
Page3of4
Approved:Resolutionon,2018
TDHCASelfScoreSampleMatrix
Max
TDHCASelfScoreCategoryProgramSelfScore
Points
UnitSize7Quality(15)xx
UnitSize(8)8
UnitandDevelopmentFeatures(7)7
SponsorCharacteristics(HUB)2
IncomeLevelsofTenants(16)16
RentLevelsofTenants(13)13
TenantServices(w/SHP11allothers10)11
OpportunityIndex(upto7)7x
A.11stor2ndQuartilewith<20%poverty(2)
A.23rdQuartilenextto2nd(1pt)
B.11/2MilefromPlayground(1)
B.21/2milefromPub.Transportation
B.31milefromGroceryorPharmacy(1)
B.43milesfromEmergencyRoomorUrgentCare(1)
B.52milesfromchildcare(1)
B.6Crimerateof26per1,000(1)
B.71milefrompubliclibrary(1)
B.85milesfromUniversityorCommunityCollege(1)
B.10Age25withAssocDeg>27%(1)
B.121mileindoorrecretion(1)
B.131mileoutdoorrecreation(1)
B.141mileofchurchorcivicclub(1)
B.15MealsonWheelsservicearea(1)
UnderservedArea(upto5)xx
A.Colonia(2)*0x
B.EconomicallyDistressed(1)*0x
C.CTwithnoHTCever(3)3
D.CT(notC.)withnoHTCunder15yrs(2)0
E.CTwithnoHTCorcontiguousnoHTCfor15yrs(5)0
SpecialHousingNeedsatleast5%SetAsides(2)2
ProximitytoUrbanCore(5pts)n/apopunder200K*0x
Popof200kormore2milesx
Popof500kormore4miles
ReadinessforDisasterFEMADesignation(5)*0x
LocalGov.LettersofSupport/NoObjections(177)*0x
LPSFunding 1
DeclaredDisasterArea 10
QuantifiableCommunityParticipation(9)*0x
StateRepresentativeSupport(9)*0x
FinancialFeasibility(18)19
CostofDevelopment/Sq.Ft.(12)12
PreApplicationParticipation(6)6
LeveragingofResources(3)3
ExtendedAffordability(2)2
HistoricPreservation(5)75%inHistoricStructure 0x
RightofFirstRefusal 1
FundingRequestAmount 1
TotalFullAppSelfScorePoints1240
*Citynoteligibleornotapplicableatthetimeofselfscore
AttachmentA.
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-833,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,to
amendOrdinanceNo.18-551PassedandApprovedonApril17,2018foradministrativeclarityinreflectingthe
vote submitted by each council member as either Aye, Nay, Abstain, or Absent.
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Legal
CM/ DCM/ ACM: Todd Hileman
DATE: 05/03/2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal corporation,
to amend Ordinance No. 18-551 Passed and Approved on April 17, 2018 for administrative clarity in
reflecting the vote submitted by each council member as either Aye, Nay, Abstain, or Absent.
BACKGROUND
At a Regular City Council Meeting held on April 17, 2018, the City Council passed and approved an
ordinance amending Section 2-29(g)(4) to provide that all votes taken upon passage of all ordinances and
resolutions be recorded in the minutes and within the resolutions and ordinances themselves. In an attempt to
assist in maintaining an accurate and efficient record of those votes cast, a
recommendation was made to modify the Council vote section by adding the following columns: Aye; Nay;
Abstain; or Absent.
RECOMMENDATIONS:
*Deny the p;
or
*Approve the revisions to Ordinance No.18-551, as presented in the attached draft ordinance.
EXHIBITS
Exhibit 1: Ordinance
Respectfully submitted:
Aaron Leal
City Attorney
ORDINANCE NO. ________________
AN ORDINANCE OF THE CITY OF DENTON, TEXAS TO AMEND ORDINANCE NO. 18-551
PASSED AND APPROVED ON APRIL 17, 2018 FOR ADMINISTRATIVE CLARITY IN
REFLECTING THE VOTE SUBMITTED BY EACH COUNCIL MEMBER AS EITHER AYE,
NAY, ABSTAIN, OR ABSENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, at a Regular City Council Meeting held on April 17, 2018, the City Council
passed and approved an ordinance amending Section 2-29(g)(4) to provide that all votes taken upon
passage of all ordinances and resolutions be recorded in the minutes and within the resolutions and
ordinances themselves; and
WHEREAS, establishing preset captions Aye, Nay, Abstain, and Absent would assist City
staff in maintaining an accurate and efficient record of the votes cast; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. Findings.
The foregoing recitals are adopted as findings of the City Council as though set forth fully
herein.
SECTION 2. City Ordinance No. 18-551, Section 5, shall amended to read as follows and be
incorporated within all further resolutions and ordinances hereinafter passed and approved by City
Council:
nd approval.
The motion to approve this ordinance was made by __________________________
and seconded by _________________________________, the ordinance was passed and
approved by the following vote \[___ - ___\]:
Aye Nay Abstain Absent
Mayor _____________________: ______ ______ ______ ______
___________________, District 1: ______ ______ ______ ______
___________________, District 2: ______ ______ ______ ______
___________________, District 3: ______ ______ ______ ______
___________________, District 4: ______ ______ ______ ______
_______________, At Large Place 5: ______ ______ ______ ______
_______________, At Large Place 6: ______ ______ ______ ______
The above format shall be updated with the names of subsequent Council Members elected
in future City elections.
SECTION 3. Severability Clause.
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 4. Effective Date.
This Ordinance shall become effective immediately upon its passage and approval.
The motion to approve this ordinance was made by __________________________
and seconded by _________________________________, the ordinance was passed and
approved by the following vote \[___ - ___\]:
Aye Nay Abstain Absent
Mayor Chris Watts: ______ ______ ______ ______
Gerard Hudspeth, District 1: ______ ______ ______ ______
Keely G. Briggs, District 2: ______ ______ ______ ______
Don Duff, District 3: ______ ______ ______ ______
John Ryan, District 4: ______ ______ ______ ______
Dalton Gregory, At Large Place 5: ______ ______ ______ ______
Sara Bagheri, At Large Place 6: ______ ______ ______ ______
PASSED AND APPROVED this the _________ day of ___________________, 2018.
__________________________________
CHRIS WATTS, MAYOR
PAGE 2
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: _________________________________
PAGE 3
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:A18-0001a,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,settingadate,andplacefortwopublic
hearingsontheproposedannexationofcertainpropertygenerallylocatedonthesouthsideofE.RyanRoad,
eastoftheintersectionofE.RyanRoadandAndrewAvenuebytheCityofDenton,Texas,authorizingand
directing the City Secretary to publish notice of such public hearings.
City of DentonPage 1 of 1Printed on 5/3/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
______________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Department of Development Services
CM: Todd Hileman
DATE: May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, setting a date, and place for two
public hearings on the proposed voluntary annexation of certain property generally located on the
south side of E. Ryan Road, east of the intersection of E. Ryan Road and Andrew Avenue by the
City of Denton, Texas, authorizing and directing the City Secretary to publish notice of such public
hearings. (A18-0001, Creekside, Cindy Jackson)
BACKGROUND
The applicant, Thomas Fletcher, on behalf of the property owner, DD Creekside Ltd., has
submitted an annexation application to voluntarily annex approximately 47.466 acres of land.
Voluntary annexation are not subject to the new annexation requirements in SB 6 which went into
effect on December 1, 2017.
The applicant is submitting the annexation request in compliance with Pre-Annexation
Development Agreement (Ord. No. 2016-251) with requires the submittal of the annexation
request within three weeks of the approval of the final plat.
The purpose of this ordinance is to establish public hearing dates for the annexation per Subchapter
C-1, §43.063 of the Texas Local Government Code (LGC). This section of the LGC establishes
the public hearing requirements for an annexation, including requirements for legal notices and
the schedule for coordinating the public hearings with the legal notices. The tentative schedule for
this annexation is as follows:
stnd
May 8, 2018 - City Council meeting setting the 1 and 2 public hearing dates and
authorizing the publication of notice of the public hearings
st
June 12, 2018 1 Public Hearing
nd
June 19, 2018 2 Public Hearing
July 17, 2018 First Reading of the Annexation Ordinance
July 18, 2018 Publication of the Annexation Ordinance in the newspaper
August 21, 2018 - Second Reading and Adoption of the Annexation Ordinance
OPTIONS
1. Approve as submitted.
2. Approve subject to conditions.
3. Deny.
4. Postpone consideration.
5. Table item.
RECOMMENDATION
Staff recommends approval of this request.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
March 21, 2018, the Planning and Zoning Commission approved a final plat for this site, FP17-
0028, Creekside Addition.
STRATEGIC PLAN RELATIONSHIP
-oriented road map that will help the City achieve
its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA):
Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and
Family-Friendly Community; and Sustainability and Environmental Stewardship. While
individual items may support multiple KFAs, this specific City Council agenda item contributes
most directly to the following KFA and goal:
Related Key Focus Area: Economic Development
Related Goal: 3.4 Encourage development, redevelopment, recruitment, and
retention
EXHIBITS
1. Agenda Information Sheet
2. Site Location Map
3. Existing Zoning Map
4. Draft Ordinance
5. Staff Presentation
6. Ordinance No. 2016-251
Respectfully submitted:
Richard Cannone, AICP
Interim Director of Planning
Prepared by:
Cindy Jackson, AICP
Senior Planner
A18-0001
Site Location
02555101,020
Feet
SITECOD
µ
ETJ
Parcels
NAA 8/1/20
Roads
Date: 4/2/2018
The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather
for reference purposes. These maps are the property of
the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate
information possible. No warranties, expressed or
implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement.
A18-0001
Existing Zoning Map
NR-2
RD-5X
NRMU
NR-3
NR-6
ETJ
CM-G
NR-4
02555101,020
Feet
SITECM-GNR-4
µ
ETJNR-6
Parcels
NR-2NRMU
Roads
NR-3RD-5X
Date: 4/2/2018
The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather
for reference purposes. These maps are the property of
the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate
information possible. No warranties, expressed or
implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement.
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-283,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,
authorizingtheCityManagertoexecuteaProfessionalServicesAgreementforengineeringandarchitectural
designforvariousCityofDentonparkinglots;providingfortheexpenditureoffundstherefor;andproviding
aneffectivedate(RFQ6581-awardedtoTeague,Nall,andPerkins,Inc.,inthenot-to-exceedamountof
$300,050).
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal corporation,
authorizing the City Manager to execute a Professional Services Agreement for engineering and
architectural design for various City of Denton parking lots; providing for the expenditure of funds therefor;
and providing an effective date (RFQ 6581-awarded to Teague,Nall,and Perkins, Inc.,in thenot-to-exceed
amount of $300,050).
BACKGROUND
During the summer of 2017 several city-owned parking lots were identified as needing to be completely
repaved. The identified parking lots serve both the public and city staff. The estimated design and
construction project budgets for these lots is $3,245,000. The strategy was to fund these lots with monies
identified during the FY 2017/18 budget process and to construct the lots over the next two years. One of
the identified parking lots is located on Cedar Street, which was recently reconstructed and completed in
late April 2018. The project construction for the Cedar Street lot was $808,264, which left $2,436,736in
funding for the design and construction of the remaining lots.
For each lot identified for construction, an engineering firm is needed to conduct design surveys, establish
efficient parking layouts, sidewalk and accessibility components, develop construction documents, and
determine compliance with the Denton Development Code.
A design/engineering project in the amount of $300,050 is being consideredfor the identified parking lots.
If the design contract is approved, then $2,136,000 ($3,245,000 minus $808,264 minus $300,050) would
be available for construction.
Parking LotAddressPavement TypeEstimated
Cost
City Hall East (westlot –Railroad)601 E. HickoryAsphalt$ 47,700
Denia Recreation Center1001 Parvin St.Asphalt$ 24,700
Civic Center2001 W. Windsor Dr. Asphalt$ 49,350
Service Center Parking Study901 Texas Street$ 26,600
Service Center (4parking areas)901 Texas StreetConcrete/Asphalt$105,500
Bid SupportN/AN/A$10,500
Geo Technical InvestigationN/AN/A$34,200
Direct ExpensesN/AN/A$ 1,500
Totals$300,050
Optional Services:
McKinney Street Parking LotAcross from City Asphalt/Concrete$ 72,950
Hall
Construction SupportN/AN/A$124,300
Totals$197,250
The design firm also provided optional services such as construction support/management. Also at the
request of Mayor Pro-Tem Bagheri, the firm provided a price for the design work to repave the McKinney
Street parking lot which is located across from City Hall. The optional costs would only be incurred if an
amendment to the contract was initiated.
Once the construction documents are completed, formal solicitationpackageswill be conductedfor
constructionof the above-listedparking lots. To achieve some economies of scale in time and costs these
projects would be bundled into two separate construction projects. One bundle would contain City Hall
East, Denia Recreation Center, and Civic Center. The other bundle would include the lots at the Service
Center. The bundling of these projects should qualify for discounted pricingbased on the size of the job.
If other city-owned parking lots are identified that need major repairs or replacement, this contract for
engineering services provides the City with the flexibility to negotiate design services in an expedited
fashion over the three year period.
Requests for Qualifications (RFQ) were sent to 637prospective suppliers for thisitem. In addition,
specifications wereplaced on the Materials Management website for prospective respondentsto download,
and advertised in the local newspaper. Eleven (11)statementsof qualifications (SOQ)were received
(Exhibit 2). The SOQs were evaluated based onpublished criteria includingthe capacity to perform within
the schedule provided, past performance, experience, and familiarity with the City processes. Based upon
this evaluation, staff recommends award to Teague Nall and Perkins, Inc.and is determined to be the most
qualified firmfor the City.
RECOMMENDATION
Awarda Professional Services Agreement to Teague Nall and Perkins, Inc. for professional engineering
and architectural design services for various City of Denton parking lotsin thenot-to-exceed amount of
$300,050over a three (3) year period.
PRINCIPAL PLACE OF BUSINESS
Teague Nall and Perkins, Inc.
Denton, 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 andconditions remaining the same.
FISCAL INFORMATION
The services will be funded from various capital improvement accountnumbers100235409 and
100235444as needed through the Facilities Management budget. A purchase order will be issued prior to
services being rendered, to ensure proper funding is available.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road mapthat 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
Sustainabilityand 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: Evaluation Sheet
Exhibit 3: Parking Lots Schedule
Exhibit 4: Contract
Exhibit 5: Staff Presentation
Exhibit 6: Ordinance
Respectfully submitted:
Karen Smith, 349-8436
Purchasing Manager
For information concerning this acquisition, contact:Mario Canizares 940-349-8535
6581EvaluationSheetforParkingLotDesignServ
PastPerformance
Understandingof
QualificationsKey
ScheduleMagnitude&
Total
City
Personnel
Complexity
Requirements
RANKFIRM20%30%20%30%100
20281926 93
1Teague,Nall&Perkins
17231824 82
2GrahamAssociates,Inc
17221724 80
3KSA
17251820 80
4CEC
17251720 79
5CEIEngineeringAssociates,Inc.
16241524 79
6IntelligentEngineeringServices
16261620 78
7KJEnvironmentalMgmtInc.
17241520 76
8BarronStarkEngineers
17201720 74
9PapeDawson
16211620 73
10NeelSchaffer
17191720 73
11AllisonEgineeringGroup
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PROFESSIONAL SERVICES AGREEMENT
FOR CONSULTING SERVICES
FILE 6581
STATE OF TEXAS §
COUNTY OF DENTON §
________________________, by and between the City of Denton, Texas, a Texas municipal
corporation, with its principal office at 215 East McKinney Street, Denton, Denton County,
Teague Nall and Perkins, Inc. , with its corporate
office at 1517 Centre Place Drive, Suite 320, Denton, Texas 76205 , hereinafter called
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 highest 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, Professional Engineering Services for
parking lot design, as described in Exhibit A, which is attached hereto and incorporated
ARTICLE II
SCOPE OF BASIC SERVICES
The CONSULTANT shall perform the following services in a professional manner:
A.The CONSULTANT shall perform all those services as necessary and as described in the
RFQ 6581 Professional Engineering Services for Parking Lot Design, which
is on file with Purchasing and further detailed in Exhibit A, attached herein.
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B.
attached hereto and made a part hereof as Exhibit B as if written word for word herein.
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 B.
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. Such 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.Preparing statements for invoicing or other documentation for billing other than for the
standard invoice for services attached to this professional services agreement.
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ARTICLE IV
TIME OF COMPLETION
CONSULTANT is authorized to commence work under this contract upon execution of this
AGREEMENT. CONSULTANT will provide services for a one (1) year period. The OWNER
and CONSULTANT shall have the option to renew this contract for an additional two (2) one-
year periods.
The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date in accordance with the provision of the
documents. 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.
ARTICLE V
COMPENSATION
A.COMPENSATION TERMS:
1.
employment of others in outside firms for services related to this agreement.
2.-
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 B 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 $300,050.
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
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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 B 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 wit
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
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
dispute concerning the amount due, or the invoice was not mailed to the address or in the
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
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
pense.
In the event the OWNER uses any of the information or materials developed pursuant to this
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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
law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this
Agreement, including the defense of governmental immunity, which defenses are hereby
expressly reserved.
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.
han $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
eneral Liability and Auto Liability
insurance policies shall name the OWNER as an additional insured. CONSULTANT
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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
clude the other
precedent to suit.
ARTICLE XI
TERMINATION OF AGREEMENT
A.Notwithstanding any other provision of this Agreement, either party may terminate by
giving t
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
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
t
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.
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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
speci
To CONSULTANT: To OWNER:
Teague Nall and Perkins, Inc City of Denton
Gary Vickery Purchasing Manager File 6581
1517 Centre Place Drive, Suite 320 901B Texas Street
Denton, TX 76205 Denton, Texas 76201
All notices shall be deemed effective upon receipt by the party to whom such notice is
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,
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.
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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
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 Schedule of Fees
Exhibit B Scope of Services
B.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
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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
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, and
subject to, the laws of the State of Texas or federal law, where applicable, without regard
to the conflict of law principles of any jurisdiction. In the event there shall be any dispute
arising out of the terms and conditions of, or in connection with, this Agreement, the
party seeking relief shall submit such dispute to the District Courts of Denton County or
if federal diversity or subject matter jurisdiction exists, to the United States District Court
for the Eastern District of Texas-Sherman Division.
D.For the purpose of this Agreement, the key persons who will perform most of the work
hereunder shall be Gary Vickery. However, nothing herein shall limit CONSULTANT
from using other equally qualified and competent members of its firm to perform the
services required herein.
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.
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.The parties agree to transact business electronically. Any statutory requirements that
certain terms be in writing will be satisfied using electronic documents and signing.
Electronic signing of this document will be deemed an original for all legal purposes.
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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
ion 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.
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
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4.Enter the Certificate Number on signature page.
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
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
BY: __________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
TEAGUE NALL AND PERKINS, INC.
A TEXAS CORPORATION
__________________________________
BY: GARY VICKERY
__________________________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
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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 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
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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
$1,000,000.00shall 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.
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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.
\[X\]
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.
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\[X\] 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
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.
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ATTACHMENT 1
\[ \]
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
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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
materially affects the provision of coverage of any person providing services on
the project; and
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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.
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.
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ATTACHMENT ‘A’
SCHEDULE OF FEES
2018 PARKING LOTS
A. BASIC SERVICES:
For work performed by the ENGINEER within the scope identified in ATTACHMENT B, Itemized
Scope of Services, the ENGINEER will be reimbursed as described below:
1. Labor
The following fees shall be paid to the ENGINEER for labor involved in the various items
of work within the scope of Basic Services identified in ATTACHMENT B:
City Hall East (Railroad Street)
Design Survey - completed previously
Parking Lot Design $ 41,500
Landscaping & Irrigation $ 6,200
Subtotal $ 47,700
Denia Recreation Center
Design Survey $ 1,800
Parking Lot Design $ 17,900
Landscaping & Irrigation $ 5,000
Subtotal $ 24,700
Civic Center
Design Survey $ 5,500
Parking Lot Design $ 36,750
Landscaping & Irrigation $ 7,100
Subtotal $ 49,350
Service Center Conceptual Parking Study $ 26,600
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
Service Center - North Parking Lot
Design Survey $ 2,200
Parking Lot Design $ 20,600
Landscaping & Irrigation $ 5,800
Subtotal $ 28,600
Service Center - West Boundary Lot
Design Survey $ 1,500
Parking Lot Design $ 18,200
Subtotal $ 19,700
Service Center - West Main Parking Lot
Design Survey $ 3,300
Parking Lot Design $ 31,800
Subtotal $ 35,100
Service Center - Parking South of Texas Street
Design Survey $ 3,200
Parking Lot Design $ 18,900
Subtotal $ 22,100
Geotechnical Investigation (Allowance) $ 34,200
Bid Support (Hourly, Est.) $ 10,500
Total $295,550
2. Direct Expenses
Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier
services, etc. will be reimbursed to the ENGINEER at his direct invoice expense plus
10% with a not-to-exceed amount of:
$ 1,500
3. Total Fee for Basic Services
TOTAL (BASIC SERVICES) $ 300,050
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B. ADDITIONAL SERVICES:
Additional work performed by the ENGINEER outside that scope identified in ATTACHMENT B,
Scope of Basic Services, shall be considered Additional Services. If requested by the City, the
following services will be added as a contract amendment. The ENGINEER will be reimbursed
for Additional Services, should they be requested, as described below:
McKinney Street Parking Lot
Design Survey $ 3,300
Parking Lot Design $ 50,200
Landscaping & Irrigation $ 9,650
Illumination $ 9,800
Subtotal $ 72,950
Construction Support (Hourly, Est.) $ 124,300
1. Labor
ENGINEER shall be reimbursed on the basis of negotiated fees for each item of service
provided, as mutually agreed to by the ENGINEER and CITY; or labor of personnel
employed by the ENGINEER will be reimbursed on an hourly basis in accordance with
EXHIBIT 3, Standard Rate Schedule.
2. Direct Expenses
Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier
services, etc. will be reimbursed to the ENGINEER at his direct invoice expense PLUS
10%.
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
ATTACHMENT 'B'
ITEMIZED SCOPE OF SERVICES
2018 PARKING LOTS
CITY OF DENTON
BASIC SERVICES
PROJECT DESCRIPTION
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.
The project generally consists of preparation of construction plans for reconstruction of selected
City of Denton parking lots as outlined below and shown on the attached exhibits, along with an
overall conceptual parking study of the Service Center on Texas Street. Each of the parking lots
will be designed as separate projects, as will the Conceptual Parking Study at the Service Center.
The schedule shows each project being developed individually.
City Hall East (Railroad St.)
Denia Recreation Center
Civic Center
McKinney Street
Service Center
North Parking
West Main Parking
West Boundary Parking
South of Texas Street Parking
More particularly, the scope of work is as described below. Services called for in the General
Conditions that are not specifically identified below are not a part of the scope of this Agreement.
Assumptions and Clarifications
The following assumptions were used by the ENGINEER for the preparation of this scope of Basic
Services:
Construction plans will be prepared for public bidding, using the Invitation for Bid (IFB)
process. It is assumed that as many as three separate bid packages will be issued (likely
on for the Service Center and up to two for the other parking lots). Bid packages will
include plans for necessary demolition, grading, paving, pedestrian elements including
ramps, and landscaping and irrigation where appropriate. Construction plans will be
complete and suitable for bidding and construction.
Unless specifically designated otherwise, the parking lots will be prepared to comply with
the Denton Development Code (DDC) to the degree possible with respect to landscaping
and development requirements. We will conduct one or more informal coordination
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meeting with selected staff from Development Services to assist us with DDC compliance.
No formal submittals to Development Services are anticipated.
It is assumed that the parking spaces and drive aisles in the existing parking lots (other
than at the Service Center) are large enough to meet current City of Denton parking
standards, or can continue to be used as they currently are. No reconfiguration of any of
the parking lots outside the Service Center are anticipated.
The ENGINEER will not prepare Traffic Control Plans. Criteria will be provided to the
contractor identifying requirements of the Traffic Control Plan. The contractor will prepare
and submit a Traffic Control Plan for review and approval by the City and the ENGINEER.
Except as specifically included in the site specific considerations below, it is assumed that
there will be no storm drain design for any of the parking lots. In addition, no drainage
area maps will be prepared for any of the parking lots, except as specifically described
below.
No fire hydrants will be relocated or added at any of the parking lots.
No platting will be a part of the scope of this agreement.
In general, illumination will not be modified in the parking lots, except as specifically
described below.
The following task/services are specifically excluded from this scope of work, but could be
added as additional services if needed:
o Water or Waste Water Lines o Perimeter Street Design
o Construction Staking o Fencing
o Materials Testing o Electrical or Fiber Utilities
o Environmental Assessments
Scope of Basic Services
More particularly, the scope of the work will consist of the following:
General Parking Lot Construction Plans & Bid Documents
1. Cover sheet.
2. General notes and typical sections.
3. Demolition plans will identify the limits of removals necessary for construction.
4. Parking lot layouts will be prepared depicting the dimensional control of the parking lot,
along with striping, accessible routes, sidewalks, appurtenances and paving sections.
5. Grading plans will include spot elevations and proposed contours where necessary to
show the required grading.
6. Traffic control and phasing criteria (traffic control plans to be submitted by contractor).
7. Detail sheets as appropriate.
8. Landscape plans will be prepared as necessary to meet DDC requirements.
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9. Irrigation plans will be prepared for all new landscape areas. If irrigation already exists, we
will work with the City to confirm that it functions properly, and modify where needed for
the new landscaping.
10. Construction cost estimates will be prepared for each parking lot, based on the final
design.
11. Bid documents, will consist of the bid proposal section and technical specifications. The
bid package will include the parking lot improvements, along with any ancillary
construction such as lighting, landscaping or irrigation.
12. TNP will submit plans to a Registered Accessibility Specialist for accessibility review
where appropriate, in accordance with Texas Department of Licensing and Registration
requirements.
Design Surveys
Perform a Topographic Design Survey for each of the parking lot areas identified herein. The
limits of survey will include the entire parking lot for each of the project areas and will include
extended areas as directed by the engineer. The survey will identify the topography (one foot
contours), visible features and above ground improvements including buildings, fences,
sidewalks, paved areas, pavement striping, utilities, landscaped areas and other pertinent
features within the project area as necessary for engineering design. A minimum of two
horizontal and vertical control points shall be established at strategic locations within or near
each of the project areas for use during the design and construction phases. A base map
representing the results of the Topographic Design Survey shall be prepared in AutoCAD Civil
3D format for in-house design purposes.
Site Specific Considerations
Denia Recreation Center
The Denia Recreation Center has an asphalt parking lot with approximately 51 spaces.
Most of the curb is damaged and broken. The construction plans will include complete
replacement of all the curbs and asphalt paving in the parking lot. Landscaped islands will
be added to comply with the DDC requirements, as well as a concrete pad and enclosure
for the dumpsters currently on the parking lot. Details for the construction of the dumpster
enclosure will be included in the plans. The existing lighting will remain, and the existing
layout will be duplicated so that the only parking spaces lost will be due to the dumpsters.
The concrete portion of the lot, where the accessible spaces are located, will not be
removed or modified. Drainage flows on the surface to the southwest corner of the
parking lot and into the private drive along the west side of the park. No underground
drainage will be needed, and no change in drainage quantity or character will be made.
Plans will not be submitted to a Texas Accessibility Specialist for review for compliance
with the Texas accessibility Standards.
Civic Center
The Civic Center parking lot has an asphalt parking lot with approximately 180 parking
spaces. The scope includes the main parking lot as well as the drive aisles and parking
that surrounds the area where the old County building once stood. This lot has
landscaped islands with irrigation and lighting. No lighting changes are anticipated, but a
number of the islands no longer have landscaping, so landscape plans will be prepared to
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complete those islands. Portions of the parking within the limits of this project were
improved when the County building was removed. Those areas will not be modified
unless grades or drainage require such modifications. The parking lot layout will not be
changed, even though the diagonal spaces do not appear to meet current City of Denton
dimension criteria. Changing the parking layout to accommodate current parking space
standards will require a total redesign of the parking lot, and a contract amendment. In
addition, there is no available space to accommodate current City of Denton parking lot
screening requirements. We will attempt to make modifications to portions of the layout
(for example, adding isolated islands) to meet the intent of the DDC in that respect, but no
retaining wall design is included in the scope of the agreement. Drainage in the main lot
generally surface flows to an inlet at the northeast corner of the parking lot. No drainage
changes are anticipated. A phasing plan will be prepared so that construction can be
carried out while retaining some parking availability during construction. Plans will be
submitted to a Texas Accessibility Specialist for review for compliance with the Texas
Accessibility Standards.
City Hall East (Railroad St.)
This parking lot has asphalt paving, and contains approximately 119 parking spaces. It
does not comply with the DDC landscaping requirements, as it has insufficient landscaped
islands and no parking lot trees or parking lot screening. The existing drive aisle is quite
wide, and will be narrowed to meet the parking lot standards and to provide room for a
sidewalk along the west side of Railroad Street as well as the required screening. It
appears there will be room to accommodate those requirements, though it will require a
short retaining wall along the right-of-way line. Both boundary and topographic design
survey have already been completed by TNP under a separate contract. Adding
landscaped islands will result in the loss of approximately 10 parking spaces. Accessible
spaces will not be added, but instead the number of accessible spaces across Railroad
Street, closer to City Hall East, will be added as needed. A total of five accessible spaces
will be required. To avoid allowing the parking lot runoff to drain across the sidewalk,
inlets will be needed to capture that flow. It appears that the most feasible approach will
be to connect these inlets to the storm drain that runs just to the north of City Hall East to
East Oak Street. Unfortunately, the capacity of that system is unknown at this time,
though the parking lot improvements will not increase the runoff in any way. The scope of
the design of this parking lot includes the necessary retaining wall and details, drainage
system in the parking lot to tie to the existing storm drain at Railroad Street, and the
necessary landscaping and irrigation to meet DDC requirements. While there is existing
high mast lighting on the parking lot, additional pedestrian level lighting will be added
along Railroad Street. Plans will not be submitted to a Texas Accessibility Specialist for
review for compliance with the Texas Accessibility Standards.
Service Center Conceptual Parking Study
Prior to preparing construction plans for the various parking lots at the Service Center,
TNP will conduct a conceptual parking study of the entire Service Center facility (see the
attached exhibit for the limits of the study). This study will take into account current plans
to relocate some of the operations from this facility to another City facility. It will also
involve interviews with City department heads, including operations staff at the facility, to
identify needed space and optimal traffic flow. The City will provide information regarding
the needed size of parking spaces for construction equipment, along with information
regarding work flow and how the facility can be best used. Auto-Turn will be used to
ensure that truck movements are adequately accounted for. This conceptual plan will be a
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high-level look at the facility, and will result in large (42”x36”) site maps of the entire facility
depicting proposed traffic flow and parking modifications. The site map will be based on
an aerial photo, to be taken using drone aerial photography, generating an aerial
photograph with 1” pixel resolution. Visitor parking will be addressed, along with
wayfinding signs and markings to guide visitors to appropriate parking and entries. This
facility does not currently comply with DDC parking and landscaping standards. We
recommend that these guidelines be followed for the parking lots designated for employee
and visitor parking, but not necessarily for those areas designated for heavy construction
equipment. Once the site layout is approved by City staff, design of the specific parking
lots can proceed.
Service Center - North Parking
This asphalt lot on the north side of the Service Center, at the entrance from Willis Street,
is primarily for employee parking, and has approximately 119 spaces. This lot has some
lighting, and no landscaped islands. Runoff is across the surface and primarily through
the Service Center site, though there appears to be a pair of storm drain lines that traverse
this parking lot and the remainder of the Service Center to convey off-site flows through
the property. The lot is irregularly shaped, resulting in some loss of efficiency, and one of
the drive aisles is the primary access to a large lot for parking heavy construction
equipment. It may be possible to reconfigure this parking lot to improve efficiency, but the
placement of landscaped islands will likely result in a loss of eight to ten parking spaces.
Since the parking lot is generally full to capacity, the possibility of expanding the parking lot
should be considered. The access drive to the heavy equipment parking area should be
paved with concrete or a thicker asphalt pavement section than the rest of the parking lot.
The scope of work in the improvements to this parking lot will include the parking lot itself,
along with landscaped islands and drainage inlets, if appropriate. The entry drive along
the west side of this lot will be addressed as part of the West Boundary Parking area.
Because this entrance is the main entrance to the entire Service Center, wayfaring
signage will be added to direct traffic entering the site. Plans will be submitted to a Texas
Accessibility Specialist for review for compliance with the Texas Accessibility Standards.
This accessibility submittal will include all the parking lots in the Service Center that are
reconstructed as part of this agreement.
Service Center - West Main Parking
This asphalt parking lot is situated on the west side of the main building and is primarily
equipment parking, containing approximately 72 parking spaces. This area also serves as
overflow visitor parking. Much of the parking consists of oversized spaces to
accommodate trailers and other equipment. Discussions with operations staff during the
Conceptual Parking Study will aid in the assessment of the parking layout. Because this
parking is primarily equipment parking, consideration should be given to a heavier
pavement section. Landscaped islands are not recommended for this parking lot because
of its use for equipment parking. Raised islands will introduce barriers to equipment
movement, canopy will interfere with large equipment, and the irrigation necessary,
coupled with the heavier equipment, will hasten the deterioration of the pavement. It may
be possible to add some landscaping and trees to the perimeter of this parking lot to add
screening, particularly along the west edge of this parking lot. All drainage will continue to
flow on the surface to the watercourse along the west side of the parking lot.
Service Center - West Boundary Parking
This parking area runs along the northwest side of the Service Center facility, parallel to
and adjacent to the railroad. It includes some limited employee and light truck parking,
Attachment B - Page 5 of 8
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
and serves as the main entry drive into the Service Center. Due to the traffic on this entry
drive, consideration should be given to concrete pavement or a heavier asphalt pavement.
All drainage on this lot flows across the surface, eventually to the watercourse that
traverses the west side of the Service Center site. No changes are anticipated in the
drainage in this area. There are trees already growing all along the property line adjacent
to the railroad. No additional plantings are anticipated in this area. No additional lighting
is anticipated, unless the need for more lighting comes out of the Conceptual Parking
Study.
Service Center - South of Texas Street Parking
This asphalt parking lot along the east side of the Fleet Maintenance facility on the south
side of Texas Street contains approximately 94 parking spaces. It supports primarily
employee parking, and also serves as the entrance to the Police Department impound
yard. It is situated in the old Crawford Road right-of-way. The lot is lighted, but there are
no landscape islands. Given the isolated location of this parking lot and the existing
natural screening to the east, no landscaping is anticipated for this parking lot. Runoff
appears to be conveyed overland from north to south, discharging off the property. No
changes to the drainage are anticipated. The scope of the work on this parking lot
consists of the parking improvements and landscaped islands. No lighting or storm drain
improvements are a part of this project.
Geotechnical Investigation
Borings will be taken as needed to verify thickness of existing materials and to identify
subgrade soils and strata to support subgrade recommendations at the various sites. A total
of twenty-five borings are assumed to a depth of five feet using a truck-mounted drilling rig.
Samples will be collected and tested, and the holes backfilled. Tests will include the following:
1. Moisture content
2. Atterberg limits
3. Percent passing No. 200 sieve
4. Soluble Sulfates
An engineering report will be prepared outlining the results of the tests, along with pavement
subgrade recommendations. The boring locations will be as identified by the Engineer, and
will be sampled at all the parking lots identified in this scope of work at one time. This item will
be considered an allowance, and will be billed at time and materials, up to but not exceeding
the amount shown on Attachment A.
Bid Support
1. ENGINEER will provide to the CITY a Notice to Bidders for advertisement for each
individual project for bid. Bid support is shown in Attachment A for each parking lot as
though it would be bid separately. If multiple parking lots are combined into a single bid
package, only one instance of bid support will be needed. The CITY shall bear the cost of
advertisement. Electronic bid documents will be provided in pdf format, no hard copy
plans for bidding purposes will be provided. Additional sets of plans required will be
considered Additional Services and will be paid for by the CITY at commercial printing
rates. The CITY shall be responsible for dispersing all plans and specifications from its
purchasing department to prospective bidders.
2. ENGINEER will provide technical support to the CITY during the Bidding & Contract
Award phase by responding to bidder and CITY questions, attending a Pre-Bid meeting (if
needed), reviewing the bids, reviewing bidder qualifications and references, and making a
Attachment B - Page 6 of 8
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
recommendation of award to the CITY. ENGINEER will prepare necessary addenda
during the bidding phase for distribution by the City of Denton Purchasing Department.
3. Bid support will be provided as requested by the City, on an hourly basis.
ADDITIONAL SERVICES
The Additional Services shown below are not a part of the Basic Services, nor are they a
part of the total contract amount for this contract. They may be added at the request of the
City as a contract amendment. If they are not added to the contract within twelve months
they will be subject to a reevaluation of the proposed fee.
McKinney Street Parking Lot
This parking lot is situated on E. McKinney Street across from City Hall. It is the former site of
the Denton County Tax Office, and is surfaced with asphalt in a few locations and asphalt
millings in the remainder. There are wheel stops to delineate parking spaces. There are no
actual landscaped islands, though there are several large trees scattered throughout the
parking area. There are no drainage features such as inlets or storm drain. The lot does have
illumination, but we recommend new lighting similar to that at the new Cedar Street parking
lot. This parking lot will need to be evaluated and reconfigured to provide the maximum
parking spaces, while meeting the City of Denton DDC requirements for landscaping and
buffers. The design of this parking lot will begin with a site layout and discussions with the
Development Services Department to ensure DDC compliance. Because this is a new
parking lot, not a reconstruction, a drainage area map will be prepared to evaluate drainage
patterns and identify needed infrastructure. For the most part, runoff would surface flow to
McKinney Street and Oak Street. There is a curb inlet in McKinney near the site, but the
capacity of that system will need to be evaluated. It is assumed for this agreement that no off-
site storm drain improvements will be designed. Landscape islands and parking lot buffers will
be included as required. Preserving the existing trees will be attempted. Plans will be
submitted to a Texas Accessibility Specialist for review for compliance with the Texas
Accessibility Standards.
Construction Support
1. TNP will attend the Pre-Construction meeting to answer questions and assist City staff.
2. TNP will review any necessary shop drawings and submittals.
3. TNP will assist the City staff as requested with issues that arise during construction.
4. TNP will provide limited construction inspection during the construction of the projects,
consisting of an average of up to 10 hours per week during construction of the various
sites to observe progress and ensure compliance with the construction plans. This
should not be considered detailed daily construction inspection and project oversight.
5. TNP will review monthly pay requests from the Contractor for accuracy and for
consistency with the status of the work, and will provide a recommendation of payment
to the City for those pay requests.
6. All construction support services will be provided at hourly rates, at the request of City
staff.
Attachment B - Page 7 of 8
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
ITEMS TO BE PROVIDED BY CITY TO THE ENGINEER
The CITY or the CITY’s designee will provide or make available to, or assist the ENGINEER in
obtaining the following services, information and materials upon request:
1. Available past studies, drainage reports, and mapping relative to the project.
2. GIS shape files that include layers such as streets, buildings and existing utilities as
requested.
3. Applicable standard City of Denton details.
PROJECT SCHEDULE
The attached schedule represents the time needed to complete the necessary surveying and
prepare construction plans and bid documents. Once the project is underway, we can work with
the various City departments (particularly Parks Department) to identify the best times to bid the
projects in light of anticipated uses (such as sports schedules, etc.). This schedule assumes
that the Notice to Proceed is issued on or before May 7, 2018. It has been assumed for this
schedule that all of the Service Center parking lots plans will be developed together, though
they will be done in a way that they could be bid separately if so desired. The schedule allows
for a one-week City staff review of preliminary plans for each parking lot.
This schedule assumes an orderly progression of the ENGINEER’s services. Delays beyond
the control of the ENGINEER may be cause for extension of this period of service.
If CITY has requested significant modifications or changes in the general scope, extent or
character of the Project, the time of performance of ENGINEER’s services shall be adjusted
equitably.
Attachment B - Page 8 of 8
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.ÐBoycott IsraelÑ 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.ÐCompanyÑ 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.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: D951AAA3-9BB7-4037-A375-540861B4B18A
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business 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 company named above 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. 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 DentonÓs Materials
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
Certificate Of Completion
Envelope Id: D951AAA39BB74037A375540861B4B18AStatus: Sent
Subject: City Council Docusign Item - 6581 Parking Lot Design
Source Envelope:
Document Pages: 32Signatures: 4Envelope Originator:
Certificate Pages: 6Initials: 0Jamie Cogdell
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-06:00) Central Time (US & Canada)Jamie.Cogdell@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: OriginalHolder: Jamie CogdellLocation: DocuSign
4/30/2018 2:36:51 PM Jamie.Cogdell@cityofdenton.com
Signer EventsSignatureTimestamp
Jamie CogdellSent: 4/30/2018 2:43:56 PM
Completed
jamie.cogdell@cityofdenton.comViewed: 4/30/2018 2:44:08 PM
Senior BuyerSigned: 4/30/2018 2:45:16 PM
Using IP Address: 129.120.6.150
City Of Denton
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Gary L VickerySent: 4/30/2018 2:45:19 PM
gvickery@tnpinc.comViewed: 4/30/2018 2:46:36 PM
PrincipalSigned: 4/30/2018 2:48:42 PM
Teague Nall and Perkins, Inc.
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Larry CollisterSent: 4/30/2018 2:48:45 PM
larry.collister@cityofdenton.comResent: 5/1/2018 11:39:51 AM
First Assistant City AttorneyResent: 5/1/2018 5:59:20 PM
City of DentonResent: 5/3/2018 7:52:08 AM
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Signed: 5/4/2018 8:32:39 AM
Electronic Record and Signature Disclosure:
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ID: 01f5f868-f109-4e29-ad49-21db9046c882
Tabitha MillsopSent: 5/4/2018 8:32:41 AM
tabitha.millsop@cityofdenton.com
City of Denton
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Todd Hileman
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Signer EventsSignatureTimestamp
Jennifer Walters
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Sherri ThurmanSent: 4/30/2018 2:48:45 PM
sherri.thurman@cityofdenton.com
City of Denton
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Jane Richardson
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Jennifer Bridges
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Jane Richardson
jane.richardson@cityofdenton.com
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Mario Canizares
mario.canizares@cityofdenton.com
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Envelope SentHashed/Encrypted5/4/2018 8:32:41 AM
Electronic Record and Signature Disclosure
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-588,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityofDenton,Texas,aTexashome-rulemunicipalcorporation,
acceptingcompetitivebidsandawardingapublicworkscontractforasphaltandconcretestreetrepairservices
fortheCityofDenton;providingfortheexpenditureoffundstherefor;andprovidinganeffectivedate(IFB
6730- awarded to Jagoe-Public Company, in the one (1) year not-to-exceed amount of $10,000,000).
City of DentonPage 1 of 1Printed on 5/4/2018
powered by Legistar™
City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Materials Management
CM:Todd Hileman
DATE:May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, a Texas home-rule municipal corporation,
accepting competitive bids and awarding apublic works contract for asphalt and concrete street repair
servicesfor the City of Denton; providing for the expenditure of funds therefor; and providing an effective
date (IFB 6730-awarded to Jagoe-Public Company, in the one(1) year not-to-exceed amount of
$10,000,000).
FILE INFORMATION
This is an asphalt and concrete street reconstruction and repair project.The main purpose is to allow for
turn-key street reconstruction;includingthe reconstruction of streets that were identified in the 2012 to
2014 Bond referendums.The contract is anannual service that provides asphaltand concreterelated repairs
for medium to large street construction projects. The contractor will meet with City staff to finalize the
project and submit pricing and bonds for the specific project need. A purchase order will be issued upon
approval of the bonds by the City).
Invitation for Bid weresent to407 prospective contractorsfor theseservices. In addition, specifications
were placed on the Materials Management website for prospective contractor to download and advertised
in the local newspaper. Two(2) bidsmeeting specifications were received. The lowest bid was received
by Jagoe-Public Company.
RECOMMENDATION
Award to the lowest responsible bidder meeting specification, Jagoe-Public Companyin the one(1) year
not-to-exceedamount of $10,000,000.The amount is based upon prior expenditures and budget funds. In
addition, it includes a small contingency for unforeseen maintenance/repairs/ new projects.
PRINCIPAL PLACE OF BUSINESS
Jagoe-Public Company
Denton, TX
ESTIMATED SCHEDULE OF PROJECT
This is aone (1) year contract.
FISCAL INFORMATION
The asphalt and concrete street repair serviceswill be fundedthrough the Streetsmaterials and supplies
account number 285801.6516in the amount of $10,000,000. The budgeted amount for these services is
$18,000,000.
STRATEGIC PLAN RELATIONSHIP
The City of Denton’s Strategic Plan is an action-oriented road mapthat will help the City achieve its vision.
The foundation for the plan is the five long-term Key Focus Areas (KFA): OrganizationalExcellence;
Public Infrastructure; Economic Development; Safe, Livable, and Family-Friendly Community; and
Sustainabilityand 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:2.1 Optimize resources to improve quality of City Roadways
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Pricing Tabulation
Exhibit 3: Contract
Exhibit 4: Staff Presentation
Exhibit 5: Ordinance
Respectfully submitted:
Karen Smith, 940-349-7100
Purchasing Manager
For information concerning this acquisition,contact:Robbin Webber at 940-349-7146.
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
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DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND JAGOE-PUBLIC COMPANY
(IFB 6730)
STATE OF TEXAS §
COUNTY OF DENTON §
THIS AGREEMENT, made and entered into this date ____________________, by and
between City of Denton of the County of Denton and State of Texas, acting through
Todd Hileman thereunto duly authorized so to do, hereinafter termed "OWNER," and Jagoe-Public
Company with the address of P.O. Box 250 of the City of Denton, County of Denton, and State
of Texas, hereinafter termed "CONTRACTOR."
WITNESSETH: That for and in consideration of the payments and agreements hereinafter
mentioned, to be made and performed by OWNER, and under the conditions expressed in the
bonds attached hereto, CONTRACTOR hereby agrees with OWNER to commence and complete
performance of the work specified below:
IFB #6730 Construction of Asphalt and Concrete Street Sections and Repairs
in the amount of Ten Million 00/100 Dollars ($10,000,000.00) and all extra work in connection
therewith, under the terms as stated in the General Conditions of the agreement; and at his (or
their) own proper cost and expense to furnish all materials, supplies, machinery, equipment, tools,
superintendence, labor, insurance, and other accessories and services necessary to complete the
work specified above, in accordance with the conditions and prices stated in the Proposal and the
Performance and Payment Bonds, attached hereto, and in accordance with all the General
Conditions of the Agreement, the Special Conditions, the Notice to Bidders (Advertisement for
Bids), Specifications, Pricing Sheet and Instructions to Bidders, as referenced herein and on file in
the office of the Purchasing Agent.
CONTRACT TERM
The contract term will be for a one (1) year period. The contract shall commence upon the issuance
of a Notice of Award by the City of Denton.
INDEPENDENT STATUS/NO JOINT VENTURE
It is mutually understood and agreed by and between City and Contractor that Contractor
is an independent contractor and shall not be deemed to be or considered an employee 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. City shall not
have supervision and control of Contractor or any employee of 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.
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Further, nothing in this Agreement shall be construed or interpreted to make OWNER and
CONTRACTOR partners or joint venturers, or to make one an agent or representative of the other.
INDEMNIFICATION
CONTRACTOR COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, OWNER,
ITS OFFICERS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE
WORK AND SERVICES TO BE PERFORMED HEREUNDER BY CONTRACTOR, ITS
OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR
INVITEES, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE
ALLEGED NEGLIGENCE OF THE OFFICERS, SERVANTS, OR EMPLOYEES OF
THE OWNER. CONTRACTOR LIKEWISE COVENANTS AND AGREES TO, AND
DOES HEREBY INDEMNIFY AND HOLD HARMLESS OWNER DURING THE
PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF THIS CONTRACT,
WHETHER ARISING OUT OF IN WHOLE OR IN PART, ANY AND ALL ALLEGED
ACTS OR OMISSIONS OF OFFICERS, SERVANTS, OR EMPLOYEES OF THE
OWNER. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE
BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY.
CHOICE OF LAW AND VENUE
This agreement shall be governed by the law of the State of Texas and venue for its
construction and enforcement shall lie in the courts of Denton County, Texas.
The CONTRACTOR hereby agrees to commence work on or after the date established for
the start of work as set forth in written notice to commence work and complete all work within the
time stated in the Proposal, subject to such extensions of time as are provided by the General and
Special Conditions.
The OWNER agrees to pay the CONTRACTOR in current funds the price or prices shown
in the Proposal, which forms a part of this contract, such payments to be subject to the General
and Special Conditions of the Contract.
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,
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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
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.
PAYMENT AND PERFORMANCE BONDS
Contractor will be required to furnish original performance and payment bonds for $10,000,000
before work is to commence. 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.
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.
LIQUIDATED DAMAGES
The time of the completion of construction of the projects are of the essence of the contract. Should
the Contractor neglect, refuse, or fail to complete the construction within the time 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 cause 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 TWO HUNDRED FIFTY DOLLARS ($250.00) per
task or project 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 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. Liquidated Damages are further discussed in Exhibit B, Section 33 B of the General
Provisions, Terms and Conditions.
FORCE MAJEURE
OWNER and CONTRACTOR shall not be in default or otherwise liable for any delay in, or failure
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of, performance under this Agreement if such delay or failure arises by any reason beyond its
reasonable control, including any act of God, any acts of the common enemy or terrorism, the
elements, earthquakes, floods, fires, epidemics, or riots. However, neither the lack of funds, nor
The Parties will promptly inform and consult with each other as to any of the above causes, which
in their judgment may or could be the cause of a delay in the performance of this Agreement, and
each party shall use commercially reasonable best efforts to limit delays on its part.
CONSTRUCTION ACCEPTANCE
CONTRACTOR. CONTRACTOR shall acknowledge receipt of the Final Punch List and notify
OWNER, within five (5) business days, of any requirements CONTRACTOR deems inconsistent
items to be included in the Final Punch List and any corrections shall be made at that time. When
the Final Punch List is complete for the entire project, a letter of acceptance will be issued by
OWNER. No deviations will be allowed unless approved in writing by OWNER.
SEVERABILITY
If any term or provision of this Agreement is held by a court to be illegal, invalid, or unenforceable,
the legality, validity, or enforcement of the remaining terms or provisions of this Agreement shall
not be affected thereby, and in lieu of each illegal, invalid, or unenforceable term or provision
there shall be added automatically to this Agreement a legal, valid, or enforceable term or provision
as similar as possible to the term or provision declared illegal, invalid, or unenforceable.
ASSIGNABILITY
OWNER and CONTRACTOR agree that this Agreement may not be assigned without the prior
written consent of the other party due to the special covenants, nature, and subject matter of this
Agreement.
NO WAIVER
The failure of OWNER or CONTRACTOR to insist, on any occasion, upon strict performance of
any provision of this Agreement will not be considered to waive the obligations, rights, or duties
imposed upon the Parties. No waiver of any breach or violation of any term of this Agreement
shall be deemed or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or of a different type of breach or violation.
EXHIBITS
All Exhibits to this Agreement are incorporated herewith by reference for all purposes, wherever
reference is made to the same.
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NO THIRD-PARTY BENEFICIARIES
This Agreement is not intended to, and does not create rights, remedies, or benefits of any character
whatsoever in favor of any persons, corporations, associations, or entities other than the Parties
hereto and their permitted successors-in-interest; and the obligations herein undertaken and
assumed are solely for the use and benefit of the Parties, their permitted successors-in-interest, and
any permitted assigns pursuant to the terms and provisions of this Agreement.
PARAGRAPH HEADINGS AND CONSTRUCTION OF AGREEMENT
The descriptive headings of this various articles and sections of this Agreement have been inserted
for the convenience of reference only, and are to be afforded no significance in the interpretation
or construction of this Agreement, which shall not be construed either more or less strongly against
or for either Party.
The parties agree to transact business electronically. Any statutory requirements that certain
terms be in writing will be satisfied using electronic documents and signing. Electronic signing
of this document will be deemed an original for all legal purposes.
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IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year
and day first above written.
OWNER
CITY OF DENTON
BY:
TODD HILEMAN
CITY MANAGER
CONTRACTOR
JAGOE-PUBLIC CO.
BY:
AUTHORIZED AGENT
NAME
TITLE
PHONE NUMBER
EMAIL ADDRESS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
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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@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
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INSURANCE REQUIREMENTS AND
Upon contract execution, all insurance requirements shall become contractual obligations, which the
successful contractor shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide
and maintain until the contracted work has been completed and accepted by the City of Denton, Owner,
the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance including
any applicable addendum or endorsements, containing the contract number and title of the project.
Contractor may, upon written request to the Purchasing Department, ask for clarification of any
insurance requirements at any time; however, Contractor shall not commence any work or deliver any
material until he or she receives notification that the contract has been accepted, approved, and signed
by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the
following general specifications, and shall be maintained in compliance with these general specifications
throughout the duration of the Contract, or longer, if so noted:
Each policy shall be issued by a company authorized to do business in the State of Texas with an
A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the
City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect
to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and defense
expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees and
volunteers.
That such insurance is primary to any other insurance available to the Additional Insured
with respect to claims covered under the policy and that this insurance applies separately
to each insured against whom claim is made or suit is brought. The inclusion of more than
one insured shall not operate to increase the insurer's limit of liability.
Cancellation: City requires 30 day written notice should any of the policies described on the
certificate be cancelled or materially changed before the expiration date.
Should any of the required insurance be provided under a claims made form, Contractor 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.
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Should any of the required insurance be provided under a form of coverage that includes a general
annual aggregate limit providing for claims investigation or legal defense costs to be included in
the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain
Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments originating
after such lapse shall not be processed until the City receives satisfactory evidence of reinstated
coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated,
City may, at its sole option, terminate this agreement effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with
the following marked specifications, and shall be maintained in compliance with these additional
specifications throughout the duration of the Contract, or longer, if so noted:
\[X\] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00 shall
be provided and maintained by the Contractor. The policy shall be written on an occurrence
basis either in a single policy or in a combination of underlying and umbrella or excess
policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed operations,
independent contractors, contractual liability covering this contract and broad form
property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations, products and
completed operations, independent contractors and property damage resulting from
explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this contract,
personal injury liability and broad form property damage liability.
\[X\] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits
(CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella
or excess policies. The policy will include bodily injury and property damage liability arising out
of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction
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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.
\[X\]
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
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
and the policy shall be issued by the same insurance company that carries the Contractor's liability
insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage
per occurrence with a $1,000,000.00 aggregate.
\[ \] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the
contractor or if a contractor leases or rents a portion of a City building. Limits of not less than
each occurrence are required.
\[ \] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to
negligent acts, errors or omissions in connection with professional services is required under this
Agreement.
\[ \] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided.
Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their
interests may appear.
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ATTACHMENT 1
\[X\] 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
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the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
2. no later than seven days after receipt by the contractor, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project.
F. The contractor shall retain all required certificates of coverage for the duration of the
project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail or
personal delivery, within 10 days after the contractor knew or should have known, of
any change that materially affects the provision of coverage of any person providing
services on the project.
H. The contractor shall post on each project site a notice, in the text, form and manner
prescribed by the Texas Workers' Compensation Commission, informing all persons
providing services on the project that they are required to be covered, and stating how
a person may verify coverage and report lack of coverage.
I. The contractor shall contractually require each person with whom it contracts to
provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44) for all of its employees
providing services on the project, for the duration of the project;
2. provide to the contractor, prior to that person beginning work on the project, a
certificate of coverage showing that coverage is being provided for all employees
of the person providing services on the project, for the duration of the project;
3. provide the contractor, prior to the end of the coverage period, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
4. obtain from each other person with whom it contracts, and provide to the contractor:
a. a certificate of coverage, prior to the other person beginning work on the project;
and
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
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for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on the
project; and
7. Contractually require each person with whom it contracts, to perform as required
by paragraphs (1) - (7), with the certificates of coverage to be provided to the person
for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all employees
of the contractor who will provide services on the project will be covered by workers'
compensation coverage for the duration of the project, that the coverage will be based
on proper reporting of classification codes and payroll amounts, and that all coverage
agreements will be filed with the appropriate insurance carrier or, in the case of a self-
insured, with the commission's Division of Self-Insurance Regulation. Providing false
or misleading information may subject the contractor to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K. Th
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.
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Exhibit A
IFB #6730, Asphalt and Concrete Street Sections and
Repair Services
This exhibit establishes the process whereby individual asphalt and concrete street section
construction projects will be initiated. It is a general outline of the steps to be taken in setting
project construction schedules and establishing project prices. The steps are generally in order of
occurrence; however, nothing herein precludes the parties from agreeing to an amended
approach for any given project.
1. The starting point for the process shall be when the project plans are delivered to the
contractor by Streets Division with indication of a preferred start date. The preferred start date
shall not be less than 30 work days from the date the plans are delivered to the contractor.
Longer planning periods are permissible. Project plans shall include a list of owner furnished
material and projected dates of availability and a status of the site preparation. Streets Division
and the contractor will coordinate, to the extent feasible, in the development phases of projects to
better facilitate planning for both parties. Benefits could be realized in long range budget
forecasting, better project timing, constructability planning, and in coordinating and optimizing
contractor resources and availability.
2. The contractor shall acknowledge receipt of the plans, indicate acceptance of the planned start
date or propose an alternate start date, and shall propose a preconstruction conference to discuss
the project. The preconstruction conference shall be scheduled not less than 14 work days before
the preferred start date.
3. At the preconstruction conference, the following actions are expected:
a. The contractor shall provide:
1) A formal estimate of the cost based on the contract unit costs in force at the time of the
notice based on the units shown on the project plans
2) A proposed time to be allowed for construction at the preconstruction conference
3) A project plan for the construction
4) A list of classification and quantity of expected personnel that will be assigned to the
project
5) A list of the type and quantity of expected equipment that will be assigned to the
project
6) Indicate a date when bonds may be expected to be received by Purchasing
7) Raise any issues of concern
b. City street department shall provide:
1) Revised project plans, if any
2) A description of the project and constraints and answer questions
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Exhibit A
3) An updated list of owner furnished materials and projected dates of availability if there
have been any changes from the initial list
4) An estimate of cost based on the units shown on the plans
5) An update to the status of site preparation if there have been any changes
6) Raise any issues of concern
c. Jointly, both parties shall (some items may require additional time after the
preconstruction conference for resolution. Resolution must be achieved before the
purchase order can be issued):
1) Review the project plan
2) Attempt to arrive at a final cost estimate
3) Establish a formal project start for mobilization
4) Establish a formal project time for construction
5) Attempt to resolve concerns on all issues or agree on a process and time for resolving
issues
3. After a formal start date and pricing are established:
a. Streets department will enter the requisition for the purchase order based on the agreed
pricing.
b. The contractor shall provide bonds to Purchasing for projects in excess of $1,000,000.
c. Purchasing shall acknowledge receipt of bonds via email to the contractor and Street
department.
d. Purchasing shall issue the purchase order with 5% retainage which shall serve as the
official notice to proceed.
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6730 Pricing for ASPHALT & CONCRETE STREET SECTIONS AND REPAIR SERVICES
Services Pricing:
EST.
ITEMUOMType of Service Requested Unit Price Extended Price
ANNUAL
3,500SY
1Excavate 4" Dirt 0 to 499 SY$9.60 υЌЌͲЏЉЉ͵ЉЉ
3,500SY
2Excavate 4" Dirt 500 to 2000 SY$9.00 υЌЊͲЎЉЉ͵ЉЉ
3,500SY
3Excavate 4" Dirt 2001 to 5000 SY$8.80 υЌЉͲБЉЉ͵ЉЉ
3,500SY
4Place 4" and Compact Type 1 5/8" Down Flex Base 0 to 499 SY$15.50 υЎЍͲЋЎЉ͵ЉЉ
3,500SY
5Place 4" and Compact Type 1 5/8" Down Flex Base 500 to 2000 SY$14.50 υЎЉͲАЎЉ͵ЉЉ
3,500SY
6Place 4" and Compact Type 1 5/8" Down Flex Base 2001 to 5000 SY$13.30 υЍЏͲЎЎЉ͵ЉЉ
73,500SYCut and Remove 4" Concrete Sidewalk 0 to 499 SY$48.50 υЊЏВͲАЎЉ͵ЉЉ
83,500SYCut and Remove 4" Concrete Sidewalk- 500 to 2000 SY$48.25 υЊЏБͲБАЎ͵ЉЉ
93,500SY Cut and Remove 4" Concrete Sidewalk 2001 to 5000 SY$48.20 υЊЏБͲАЉЉ͵ЉЉ
103,500SYReplace 4" Concrete Sidewalk 0 to 499 SY$63.25 υЋЋЊͲЌАЎ͵ЉЉ
113,500SYReplace 4" Concrete Sidewalk- 500 to 2000 SY$62.25 υЋЊАͲБАЎ͵ЉЉ
123,500SYReplace 4" Concrete Sidewalk-2001 to 5000 SY$60.25 υЋЊЉͲБАЎ͵ЉЉ
132,500SYCut and Remove 5" Concrete Sidewalk 0 to 499$47.00 υЊЊАͲЎЉЉ͵ЉЉ
142,500SYCut and Remove 5" Concrete Sidewalk - 500 to 2000 SY$46.50 υЊЊЏͲЋЎЉ͵ЉЉ
152,500SYCut and Remove 5" Concrete Sidewalk- 2001 to 5000 SY$46.30 υЊЊЎͲАЎЉ͵ЉЉ
162,500SYReplace 5" Concrete Sidewalk 0 to 499 SY$67.50 υЊЏБͲАЎЉ͵ЉЉ
172,500SYReplace 5" Concrete Sidewalk- 500 to 2000 SY$66.00 υЊЏЎͲЉЉЉ͵ЉЉ
182,500SYReplace 5" Concrete Sidewalk-2001 to 5000 SY$65.50 υЊЏЌͲАЎЉ͵ЉЉ
193,500SYCut and Remove 6" Concrete Sidewalk(with Steel) 0 to 500 SY$47.00 υЊЏЍͲЎЉЉ͵ЉЉ
203,500SYCut and Remove 6" Concrete Sidewalk(with Steel) 501 to 2000 SY$46.75 υЊЏЌͲЏЋЎ͵ЉЉ
213,500SYCut and Remove 6" Concrete Sidewalk(with Steel) 2001 to 5000 SY$46.50 υЊЏЋͲАЎЉ͵ЉЉ
223,500SYReplace 6" Concrete Sidewalk(with Steel) 0 to 500 SY$70.00 υЋЍЎͲЉЉЉ͵ЉЉ
233,500SYReplace 6" Concrete Sidewalk(with Steel) 501 to 2000 SY$67.75 υЋЌАͲЊЋЎ͵ЉЉ
243,500SYReplace 6" Concrete Sidewalk(with Steel) 2001 to 5000 SY$66.00 υЋЌЊͲЉЉЉ͵ЉЉ
253,500SYConcrete Patterned (Medians)$122.00 υЍЋАͲЉЉЉ͵ЉЉ
26100EACut and Remove 5' Type 1A Wheel Chair Ramp$700.00 υАЉͲЉЉЉ͵ЉЉ
27100EAReplace 5' Type 1A Wheel Chair Ramp$1,400.00 υЊЍЉͲЉЉЉ͵ЉЉ
28100EACut and Remove 8' Type 1A Wheel Chair Ramp$800.00 υБЉͲЉЉЉ͵ЉЉ
29100EAReplace 8' Type 1A Wheel Chair Ramp$1,800.00 υЊБЉͲЉЉЉ͵ЉЉ
30100EACut and Remove 10' Type 1A Wheel Chair Ramp$900.00 υВЉͲЉЉЉ͵ЉЉ
31100EAReplace 10' Type 1A Wheel Chair Ramp$1,900.00 υЊВЉͲЉЉЉ͵ЉЉ
32100SYCut and Replace 8' Valley Gutter$50.00 υЎͲЉЉЉ͵ЉЉ
33100SYReplace 8' Valley Gutter$77.00 υАͲАЉЉ͵ЉЉ
34100SYCut and Remove 10' Valley Gutter$60.00 υЏͲЉЉЉ͵ЉЉ
35100SYReplace 10' Valley Gutter$86.00 υБͲЏЉЉ͵ЉЉ
361,500SYCut and Remove 6" Concrete Pavement-500 to 2000 SY$50.00 υАЎͲЉЉЉ͵ЉЉ
374,000SYCut and Remove 6" Concrete Pavement-2001 to 5000 SY$49.00 υЊВЏͲЉЉЉ͵ЉЉ
385,000SYCut and Remove 6" Concrete Pavement 5001 to 8000 SY$48.00 υЋЍЉͲЉЉЉ͵ЉЉ
391,500SYReplace 6" Concrete Pavement-500 to 2000 SY$71.00 υЊЉЏͲЎЉЉ͵ЉЉ
404,000SYReplace 6" Concrete Pavement-2001 to 5000 SY$69.00 υЋАЏͲЉЉЉ͵ЉЉ
415,000SYReplace 6" Concrete Pavement 5001 to 8000 SY$60.50 υЌЉЋͲЎЉЉ͵ЉЉ
421,000SYCut and Remove 8" Concrete Pavement-500 to 2000 SY$61.00 υЏЊͲЉЉЉ͵ЉЉ
433,500SYCut and Remove 8" Concrete Pavement-2001 to 5000 SY$60.00 υЋЊЉͲЉЉЉ͵ЉЉ
445,000SYCut and Remove 8" Concrete Pavement 5001 to 8000 SY$58.00 υЋВЉͲЉЉЉ͵ЉЉ
451,000SYReplace 8" Concrete Pavement-500 to 2000 SY$72.00 υАЋͲЉЉЉ͵ЉЉ
463,500SYReplace 8" Concrete Pavement-2001 to 5000 SY$71.50 υЋЎЉͲЋЎЉ͵ЉЉ
475,000SYReplace 8" Concrete Pavement 5001 to 8000 SY$71.00 υЌЎЎͲЉЉЉ͵ЉЉ
481,500SYCut and Remove 10" Concrete Pavement-500 to 2000 SY$68.00 υЊЉЋͲЉЉЉ͵ЉЉ
494,000SYCut and Remove 10" Concrete Pavement-2001 to 5000 SY$67.00 υЋЏБͲЉЉЉ͵ЉЉ
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
6730 Pricing for ASPHALT & CONCRETE STREET SECTIONS AND REPAIR SERVICES
505,000SYCut and Remove 10" Concrete Pavement 5001 to 8000 SY$66.50 υЌЌЋͲЎЉЉ͵ЉЉ
511,500SYReplace 10" Concrete Pavement-500 to 2000 SY$86.00 υЊЋВͲЉЉЉ͵ЉЉ
524,000SYReplace 10" Concrete Pavement-2001 to 5000 SY$85.00 υЌЍЉͲЉЉЉ͵ЉЉ
535,000SYReplace 10" Concrete Pavement 5001 to 8000 SY$84.00 υЍЋЉͲЉЉЉ͵ЉЉ
544,500LFCut and Remove 24" Curb and Gutter 0 to 499 LF$14.00 υЏЌͲЉЉЉ͵ЉЉ
554,500LFCut and Remove 24" Curb and Gutter 500 to 2000 LF$13.90 υЏЋͲЎЎЉ͵ЉЉ
564,500LFCut and Remove 24" Curb and Gutter-2001 to 5000 LF$13.80 υЏЋͲЊЉЉ͵ЉЉ
574,500LF Cut and Remove 30" Surmountable Curb and Gutter 0 to 500 LF$16.50 υАЍͲЋЎЉ͵ЉЉ
584,500LFCut and Remove 30" Surmountable Curb and Gutter 501 to 2000 LF$16.40 υАЌͲБЉЉ͵ЉЉ
594,500LFCut and Remove 30" Surmountable Curb and Gutter 2001 to 5000 LF$16.30 υАЌͲЌЎЉ͵ЉЉ
604,500LFReplace 24" Curb and Gutter 0 to 500 LF$35.00 υЊЎАͲЎЉЉ͵ЉЉ
611,800LFReplace 24" Curb and Gutter-501 to 2000 LF$34.00 υЏЊͲЋЉЉ͵ЉЉ
624,500LFReplace 24" Curb and Gutter-2001 to 5000 LF$33.00 υЊЍБͲЎЉЉ͵ЉЉ
634,500LFReplace 30" Curb and Gutter 0 to 500 LF$37.00 υЊЏЏͲЎЉЉ͵ЉЉ
644,500LFReplace 30" Curb and Gutter 501 to 2000 LF$35.00 υЊЎАͲЎЉЉ͵ЉЉ
654,500LFReplace 30" Curb and Gutter 2001 to 5000 LF$35.00 υЊЎАͲЎЉЉ͵ЉЉ
662,000SYCut and Remove 2" Asphalt-500 to 2000 SY$5.50 υЊЊͲЉЉЉ͵ЉЉ
675,000SYCut and Remove 2" Asphalt-2001 to 5000 SY$2.50 υЊЋͲЎЉЉ͵ЉЉ
685,000SYCut and Remove 2" Asphalt 5001 to 8000 SY$2.20 υЊЊͲЉЉЉ͵ЉЉ
692,000SYReplace 2" Asphalt-500 to 2000 SY$9.00 υЊБͲЉЉЉ͵ЉЉ
705,000SYReplace 2" Asphalt-2001 to 5000 SY$7.40 υЌАͲЉЉЉ͵ЉЉ
715,000SYReplace 2" Asphalt 5001 to 8000 SY$7.30 υЌЏͲЎЉЉ͵ЉЉ
722,000SYCut and Remove 3" Asphalt-500 to 2000 SY$5.50 υЊЊͲЉЉЉ͵ЉЉ
735,000SYCut and Remove 3" Asphalt-2001 to 5000 SY$2.60 υЊЌͲЉЉЉ͵ЉЉ
745,000SYCut and Remove 3" Asphalt 5001 to 8000 Sy$2.38 υЊЊͲВЉЉ͵ЉЉ
752,000SYReplace 3" Asphalt-500 to 2000 SY$12.00 υЋЍͲЉЉЉ͵ЉЉ
765,000SYReplace 3" Asphalt-2001 to 5000 SY$10.40 υЎЋͲЉЉЉ͵ЉЉ
775,000SYReplace 3" Asphalt 5001 to 8000 SY$10.25 υЎЊͲЋЎЉ͵ЉЉ
781,500SYCut and Remove 4" Asphalt-500 to 2000 SY$5.80 υБͲАЉЉ͵ЉЉ
793,500SYCut and Remove 4" Asphalt-2001 to 5000 SY$3.00 υЊЉͲЎЉЉ͵ЉЉ
805,000SYCut and Remove 4" Asphalt 5001 to 8000 Sy$2.70 υЊЌͲЎЉЉ͵ЉЉ
811,500SYReplace 4" Asphalt-500 to 2000 SY$16.00 υЋЍͲЉЉЉ͵ЉЉ
823,500SYReplace 4" Asphalt-2001 to 5000 SY$13.80 υЍБͲЌЉЉ͵ЉЉ
835,000SYReplace 4" Asphalt 5001 to 8000 SY$13.50 υЏАͲЎЉЉ͵ЉЉ
841,500SYCut and Remove 5" Asphalt-500 to 2000 SY$6.60 υВͲВЉЉ͵ЉЉ
853,500SYCut and Remove 5" Asphalt-2001 to 5000 SY$3.40 υЊЊͲВЉЉ͵ЉЉ
865,000SYCut and Remove 5" Asphalt 5001 to 8000 SY$3.25 υЊЏͲЋЎЉ͵ЉЉ
871,500SYReplace 5" Asphalt-500 to 2000 SY$17.80 υЋЏͲАЉЉ͵ЉЉ
883,500SYReplace 5" Asphalt-2001 to 5000 SY$15.75 υЎЎͲЊЋЎ͵ЉЉ
895,000SYReplace 5" Asphalt 5001 to 8000 SY$15.25 υАЏͲЋЎЉ͵ЉЉ
901,800SYCut and Remove 6" Asphalt-500 to 2000 SY$7.25 υЊЌͲЉЎЉ͵ЉЉ
913,500SYCut and Remove 6" Asphalt-2001 to 5000 SY$3.80 υЊЌͲЌЉЉ͵ЉЉ
925,000SYCut and Remove 6" Asphalt 5001 to 8000 SY$3.30 υЊЏͲЎЉЉ͵ЉЉ
931,800SYReplace 6" Asphalt-500 to 2000 SY$20.00 υЌЏͲЉЉЉ͵ЉЉ
943,500SYReplace 6" Asphalt-2001 to 5000 SY$18.75 υЏЎͲЏЋЎ͵ЉЉ
955,000SYReplace 6" Asphalt 5001 to 8000 SY$18.50 υВЋͲЎЉЉ͵ЉЉ
961,500SYCut and Remove 7" Asphalt-500 to 2000 SY$7.50 υЊЊͲЋЎЉ͵ЉЉ
973,500SYCut and Remove 7" Asphalt-2001 to 5000 SY$4.15 υЊЍͲЎЋЎ͵ЉЉ
985,000SYCut and Remove 7" Asphalt 5001 to 8000 SY$3.50 υЊАͲЎЉЉ͵ЉЉ
991,500SYReplace 7" Asphalt-500 to 2000 SY$23.50 υЌЎͲЋЎЉ͵ЉЉ
1003,500SYReplace 7" Asphalt-2001 to 5000 SY$22.25 υААͲБАЎ͵ЉЉ
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
6730 Pricing for ASPHALT & CONCRETE STREET SECTIONS AND REPAIR SERVICES
1015,000SYReplace 7" Asphalt 5001 to 8000 SY$21.75 υЊЉБͲАЎЉ͵ЉЉ
1023,500SYCut and Remove 8" Asphalt-500 to 2000 SY$7.75 υЋАͲЊЋЎ͵ЉЉ
1033,500SYCut and Remove 8" Asphalt-2001 to 5000 SY$4.20 υЊЍͲАЉЉ͵ЉЉ
1047,500SYCut and Remove 8'' Asphalt-5001 to 8000 SY$3.70 υЋАͲАЎЉ͵ЉЉ
1051,500SYReplace 8" Asphalt-500 to 2000 SY$26.50 υЌВͲАЎЉ͵ЉЉ
1063,500SYReplace 8" Asphalt-2001 to 5000 SY$25.75 υВЉͲЊЋЎ͵ЉЉ
1077,500SYReplace 8'' Asphalt- 5001 to 8000 SY$25.00 υЊБАͲЎЉЉ͵ЉЉ
1083,500SYCut and Remove 9" Asphalt 500 to 2000 SY$8.00 υЋБͲЉЉЉ͵ЉЉ
1093,500SYCut and Remove 9" Asphalt 2001 to 5000 SY$4.85 υЊЏͲВАЎ͵ЉЉ
1107,500SYCut and Remove 9" Asphalt 5001 to 8000 SY$4.60 υЌЍͲЎЉЉ͵ЉЉ
1113,500SYReplace 9" Asphalt 500 to 2000 SY$28.50 υВВͲАЎЉ͵ЉЉ
1123,500SYReplace 9" Asphalt 2001 to 5000 SY$28.25 υВБͲБАЎ͵ЉЉ
1137,500SYReplace 9" Asphalt 5001 to 8000 SY$28.00 υЋЊЉͲЉЉЉ͵ЉЉ
1141,500SYCut and Remove 10" Asphalt-500 to 2000 SY$8.50 υЊЋͲАЎЉ͵ЉЉ
1153,500SYCut and Remove 10" Asphalt-2001 to 5000 SY$5.50 υЊВͲЋЎЉ͵ЉЉ
1167,000SYCut and Remove 10" Asphalt 5001 to 8000 SY$5.25 υЌЏͲАЎЉ͵ЉЉ
1171,500SYReplace 10" Asphalt-500 to 2000 SY$32.00 υЍБͲЉЉЉ͵ЉЉ
1183,500SYReplace 10" Asphalt-2001 to 5000 SY$31.00 υЊЉБͲЎЉЉ͵ЉЉ
1197,500SYReplace 10'' Asphalt-5001 to 8000 Sy$30.75 υЋЌЉͲЏЋЎ͵ЉЉ
1201,800SYCut and Remove 12" Asphalt-500 to 2000 SY$8.80 υЊЎͲБЍЉ͵ЉЉ
1214,500SYCut and Remove 12" Asphalt-2001 to 5000 SY$7.00 υЌЊͲЎЉЉ͵ЉЉ
1227,500SYCut and Remove 12'' Asphalt- 5001 to 8000 SY$6.50 υЍБͲАЎЉ͵ЉЉ
1231,800SYReplace 12" Asphalt-500 to 2000 SY$37.25 υЏАͲЉЎЉ͵ЉЉ
1244,500SYReplace 12" Asphalt-2001 to 5000 SY$36.75 υЊЏЎͲЌАЎ͵ЉЉ
1257,500SYReplace 12'' Asphalt-5001 to 8000 SY$36.50 υЋАЌͲАЎЉ͵ЉЉ
126100EAAdjust Manholes to Finish Grade - All Manholes$445.00 υЍЍͲЎЉЉ͵ЉЉ
127100EAAdjust Valves to Finish Grade$335.00 υЌЌͲЎЉЉ͵ЉЉ
1282,000SYSubgrade Stabilization - 6" 500 to 2000 SY$5.35 υЊЉͲАЉЉ͵ЉЉ
1291,000SYLime Subgrade Stabilization - 8" 500 to 2000 SY$10.70 υЊЉͲАЉЉ͵ЉЉ
1304,300SYLime Subgrade Stabilization - 8" 2001 to 5000 SY$5.00 υЋЊͲЎЉЉ͵ЉЉ
1315,000SYLime Subgrade Stabilization - 8" 5001 to 8000 SY$4.75 υЋЌͲАЎЉ͵ЉЉ
1321,000SYLime Subgrade Stabilization - 12" 500 to 2000 SY$15.80 υЊЎͲБЉЉ͵ЉЉ
1334,300SYLime Subgrade Stabilization - 12" 2001 to 5000 SY$6.10 υЋЏͲЋЌЉ͵ЉЉ
1345,000SYLime Subgrade Stabilization - 12" 5001 to 8000 SY$6.00 υЌЉͲЉЉЉ͵ЉЉ
1351,000SYCement Subgrade Stabilization - 8" 500 to 2000 SY$10.75 υЊЉͲАЎЉ͵ЉЉ
1364,000SYCement Subgrade Stabilization - 8" 2001 to 5000 SY$5.00 υЋЉͲЉЉЉ͵ЉЉ
1375,000SYCement Subgrade Stabilization - 8" 5001 to 8000 SY$4.75 υЋЌͲАЎЉ͵ЉЉ
1381,000SYCement Subgrade Stabilization - 12" 500 to 2000 SY$10.75 υЊЉͲАЎЉ͵ЉЉ
1393,500SYCement Subgrade Stabilization - 12" 2001 to 5000 SY$5.50 υЊВͲЋЎЉ͵ЉЉ
1405,000SYCement Subgrade Stabilization - 12" 5001 to 8000 SY$5.00 υЋЎͲЉЉЉ͵ЉЉ
141200TNLime for Subgrade Stabilization - PH Series (1 to 1000 TN)$156.00 υЌЊͲЋЉЉ͵ЉЉ
142200TNCement for Stabilization - Atterberg Limits (1 to 1000 TN)$154.00 υЌЉͲБЉЉ͵ЉЉ
143700LFErosion Control - Silt Fence - Inlet Protection$4.00 υЋͲБЉЉ͵ЉЉ
144750SYHydromulch$5.25 υЌͲВЌА͵ЎЉ
145250CYUnclassified Excavation-1 to 500 CY$19.50 υЍͲБАЎ͵ЉЉ
146750CYUnclassified Excavation-501 to 999 CY$14.50 υЊЉͲБАЎ͵ЉЉ
147250CYCompacted Fill to 95%-100 to 500 CY$24.25 υЏͲЉЏЋ͵ЎЉ
148750CYCompacted Fill to 95%-501 to 1000 CY$13.75 υЊЉͲЌЊЋ͵ЎЉ
149250CYInstall Type 1 Flexbse by CY-10" 0 to 500 CY$80.00 υЋЉͲЉЉЉ͵ЉЉ
150750CYInstall Type 1 Flexbase by CY-10" 500 to 999 CY$79.00 υЎВͲЋЎЉ͵ЉЉ
151250CYInstall Type 1 Flexbase by CY-15" 0 to 500 CY$78.50 υЊВͲЏЋЎ͵ЉЉ
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
6730 Pricing for ASPHALT & CONCRETE STREET SECTIONS AND REPAIR SERVICES
152750CYInstall Type 1 Flexbase by CY-15" 501 to 999 CY$72.00 υЎЍͲЉЉЉ͵ЉЉ
153250SYAsphalt Base Failure Repair by SY-6"-100 to 500 SY$82.00 υЋЉͲЎЉЉ͵ЉЉ
1541,000SYAsphalt Base Failure Repair by SY-6"-501 to 1500 SY$40.00 υЍЉͲЉЉЉ͵ЉЉ
155250SYAsphalt Base Failure Repair by SY-8"-100 to 500 SY$88.00 υЋЋͲЉЉЉ͵ЉЉ
1561,000SYAsphalt Base Failure Repair by SY-8"-501 to 1501 SY$50.00 υЎЉͲЉЉЉ͵ЉЉ
1573,500SYEmulsified Asphalt for Priming of Subgrade (SS-1)$0.62 υЋͲЊАЉ͵ЉЉ
1585EARemove and replace inlet top 5' $4,100.00 υЋЉͲЎЉЉ͵ЉЉ
1595EARemove and replace inlet top 10'$4,400.00 υЋЋͲЉЉЉ͵ЉЉ
1605EARemove and replace inlet top 20"$6,300.00 υЌЊͲЎЉЉ͵ЉЉ
1615EARemove curb inlet 10' (0' to 6' Depth)$1,350.00 υЏͲАЎЉ͵ЉЉ
1621VFTVertical foot extra depth$525.00 υЎЋЎ͵ЉЉ
1635EARemove curb inlet 15' (0' to 6' Depth)$1,450.00 υАͲЋЎЉ͵ЉЉ
1641VFTVertical foot extra depth$530.00 υЎЌЉ͵ЉЉ
1655EARemove curb inlet 20' (0' to 6' Depth)$1,550.00 υАͲАЎЉ͵ЉЉ
1661VFTVertical foot extra depth$540.00 υЎЍЉ͵ЉЉ
1675EAInstall curb inlet 10' (0' to 6' Depth)$6,225.00 υЌЊͲЊЋЎ͵ЉЉ
1681VFTVertical foot extra depth$312.00 υЌЊЋ͵ЉЉ
1695EAInstall curb inlet 15' (0' to 6' Depth)$8,000.00 υЍЉͲЉЉЉ͵ЉЉ
1701VFTVertical foot extra depth$410.00 υЍЊЉ͵ЉЉ
1715EAInstalll curb inlet 20' (0' to 6' Depth)$9,700.00 υЍБͲЎЉЉ͵ЉЉ
1721VFTVertical foot extra depth$510.00 υЎЊЉ͵ЉЉ
1735EAInstall 4' Yard Inlet (0' to 6' Depth)$3,200.00 υЊЏͲЉЉЉ͵ЉЉ
1741VFTVertical foot extra depth$245.00 υЋЍЎ͵ЉЉ
1755EAInstall 6' Yard Inlet (0' to 6' Depth)$3,775.00 υЊБͲБАЎ͵ЉЉ
1761VFTVertical foot extra depth$350.00 υЌЎЉ͵ЉЉ
177250LFInstall 18" RCP (0' to 6' Depth)$120.00 υЌЉͲЉЉЉ͵ЉЉ
1781VFTVertical foot extra depth$82.00 υБЋ͵ЉЉ
179250LFInstall RCP 24" (0' to 6' Depth)$138.00 υЌЍͲЎЉЉ͵ЉЉ
1801VFTVertical foot extra depth$84.00 υБЍ͵ЉЉ
181250LFInstall RCP 30" (0' to 6' Depth)$177.00 υЍЍͲЋЎЉ͵ЉЉ
1821VFTVertical foot extra depth$86.00 υБЏ͵ЉЉ
183250LFInstall RCP 36" (0' to 6' Depth)$210.00 υЎЋͲЎЉЉ͵ЉЉ
1841VFTVertical foot extra depth$88.00 υББ͵ЉЉ
185200LFRemove 6' Concrete Flume with 6" curb $33.00 υЏͲЏЉЉ͵ЉЉ
186200LFInstall 6' concrete Flume with 6" curb $76.00 υЊЎͲЋЉЉ͵ЉЉ
187200LFRemove 10' concrete Flume with 6" curb $36.75 υАͲЌЎЉ͵ЉЉ
188200LFInstall 10' concrete Flume with 6" curb $112.00 υЋЋͲЍЉЉ͵ЉЉ
1895EA4' Junction Box (0' to 6' Depth)$3,150.00 υЊЎͲАЎЉ͵ЉЉ
1901VFTVertical foot extra depth$245.00 υЋЍЎ͵ЉЉ
1915EA5' Junction box (0' to 6' Depth)$3,950.00 υЊВͲАЎЉ͵ЉЉ
1921VFTVertical foot extra depth$296.00 υЋВЏ͵ЉЉ
1935EA6" Junction Box (0' to 6' Depth)$4,800.00 υЋЍͲЉЉЉ͵ЉЉ
1941VFTVertical foot extra depth$350.00 υЌЎЉ͵ЉЉ
19510EA6:1 Saftey End Treatments 18" Pipe$1,675.00 υЊЏͲАЎЉ͵ЉЉ
19610EA6:1 Safety End Treatment 24" Pipe$2,300.00 υЋЌͲЉЉЉ͵ЉЉ
19710EA6:1 Safety End Treatment 30" Pipe$3,000.00 υЌЉͲЉЉЉ͵ЉЉ
198500SYSt. Augustine Sod$12.50 υЏͲЋЎЉ͵ЉЉ
199500SYBermuda Sod$10.50 υЎͲЋЎЉ͵ЉЉ
Total Cost of Services (Annual)$14,359,830.50
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.
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. -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.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business 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 company named above 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. 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
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 331434DB-BF66-4D23-81EF-DFF4539409A4
Exhibit
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
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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.
1
2
Check this box if you are filing an update to a previously filed questionnaire.
th
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7 business
day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3
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Yes No
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Yes No
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officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
Certificate Of Completion
Envelope Id: 331434DBBF664D2381EFDFF4539409A4Status: Sent
Subject: City Council Docusign Item - 6730 Asphalt and Concrete Street Sections and Repair Services
Source Envelope:
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Certificate Pages: 6Initials: 0Jamie Cogdell
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-06:00) Central Time (US & Canada)Jamie.Cogdell@cityofdenton.com
IP Address: 129.120.6.150
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City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-645,Version:1
AGENDA CAPTION
Consider adoption of an ordinance of the City of Denton, Texas, providing for, authorizing, and approving the
expenditure of Hotel Occupancy Tax funds for public art in the amount of $45,000 awarded to artist Paula
Collins (File 6607) which is available from only one source and in accordance with Chapter 252.022 of the
Texas Local Government Code such purchases are exempt from the requirements of competitive bidding and
2014 Bond funds for public safety-related public art in the amount of $9,300 awarded to Kirkpatrick
Architecture Studio for its professional services (File 6796) for the purchase and installation of two brick
sculptures depicting the history of the Denton Police Department to be displayed on the exterior of City Hall
East; authorizing the City Manager to execute any agreements required under Files 6607 and 6796; and
providing an effective date. The Public Art Committee recommends approval (4-3).
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
CITY COUNCIL
DEPARTMENT: Economic Development
CM/ DCM/ ACM: Bryan Langley
DATE: May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, providing for, authorizing, and
approving the expenditure of Hotel Occupancy Tax funds for public art in the amount of $45,000
awarded to artist Paula Collins (File 6607) which is available from only one source and in accordance
with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the
requirements of competitive bidding and 2014 Bond funds for public safety-related public art in the
amount of $9,300 awarded to Kirkpatrick Architecture Studio for its professional services (File 6796) for
the purchase and installation of two brick sculptures depicting the history of the Denton Police
Department to be displayed on the exterior of City Hall East; authorizing the City Manager to execute any
agreements required under Files 6607 and 6796; and providing an effective date. The Public Art
Committee recommends approval (4-3).
EXECUTIVE SUMMARY
Over the past year, the Public Art Committee has held discussions regarding a public art project on the
exterior of the Denton Police Department facility. After a review of the committeetes, staff
determined that no formal recommendation was made from the committee to the City Council regarding
the project. As such, work on the project has been placed on hold so that the correct recommendation
and approval process can be followed.
During this meeting, the City Council is being asked to consider adoption of an ordinance
providing for, authorizing and approving the project, funding sources, and recipients. The following
chart is a summary of the proposed funding sources for the project:
Program Year 2018 HOT funds* $ 45,000
2014 Bond Election Public Art $ 9,300
for Public Safety funds
$ 54,300
*one-time allocation from the Hotel Occupancy Tax Committee specifically for this project
BACKGROUND
April 6, 2017 PAC meeting minutes state the Police Department approached staff regarding the
commissioning of a two brick sculpture panels for the outside wall of the police station entrance. Paula
Collins, the artist who previously sculpted the existing piece inside the police facility, is the artist the
Police Department wished to commission. A photo of the existing piece was provided to the PAC as an
example. The meeting minutes additionally stated that the Police Department was considering options to
fund the project, including applying for Hotel Occupancy Tax (HOT) funds; the use of funds remaining
from the bond sold for art for Public Safety; requesting remaining funds from the 9-11 Memorial project,
or to determine whether the PAC would use public art HOT funds for the project. PAC minutes do not
reflect that a vote was taken on this request. However, the topic was not placed on subsequent agendas
forfurther discussion.
May 18, 2017 Denton Police staff provided Paula Colli rough estimate of $45,000 for the project to
the PAC staff liaison. On August 22, 2017, the Hotel Occupancy Tax Committee recommended the
Public Art Committee receive $73,252 (reflective of the Cityresolution 2006-014) plus a one-time
allocation of $45,000 specifically for the Denton Police Departmerick sculptures. This
recommendation from the Hotel Occupancy Tax Committee was made to City Council during its session
on the same day. Subsequently, on November 21, 2017, a contract was entered into between the City and
Artist Paula Collins for $45,500, reflecting a $500 increase in actual project materials cost debited from
the Police Department FY 2017-18 budget Miscellaneous line item.
December 2, 2017 PAC meeting minutes state the Police Department approached staff requesting the
use of Public Safety-Public Art funds from the 2014 Bond Election to pay for newly-identified
engineering services that will be required to install the completed sculpture. At that time, the cost was
estimated to be $16,600. The PAC minutes do not reflect a committee vote was taken regarding this
funding request. Subsequently, on March 2, 2018, Kirkpatrick Architecture Studio provided Police staff
with a written proposal to perform basic architecture and engineering services work billed at an hourly
rate, not to exceed a total cost of $9,000. Kirkpatrick recently completed the Police Station lobby
renovations including the areas where the two brick sculptures would be installed.
RECOMMENDATION
April 5, 2018 Police Department staff presented a review of the project
members discussed opening the project for a formal bid process and to preclude the need to reassess future
projects through their decision process. The PAC requested and received leadership staff assurance that
future projects would adhere to the City policies and procedures now in place and
the RFQ process would be utilized.
The PAC agreed that considering the coherent conceptual designs, historical research, and the time and
work already invested by the artist, Paula Collins, that it would be prudent to move forward with the designs
as presented along with didactics provided to identify panel figures and their historical significance. It was
also agreed that only the funds that have been dedicated would be used $45,000 from HOT funds and the
do-not-exceed amount of $9,000 from 2014 CIP Public Art for Public Safety funds for
architectural/engineering needs. The motion was approved by a vote of 4 to 3.
In its review of the Kirkpatrick Architecture Studios scope of work proposal, Materials Management noted
an additional potential cost for printing presentations, Owner, meetings and regulatory review, not to exceed
$300 and reflected this addition in the ordinance under consideration (2014 Bond funds for public safety-
related public art of $9,300 to Kirkpatrick Architecture Studio).
To date, the City has expended $5,000 for work completed to artist Paula Collins. Collins has recently
completed, but not yet invoiced the City, for the second stage of contract work in the amount of $5,000.
Should another artist or project be selected, the contract signed November 21, 2017 between the City and
Collins specifies the City would be required to provide the artist a thirty (30) days advance written notice
and pay the artist for all goods delivered and services performed prior to the termination date, at which
time the artist would be obligated to cease work. The City would be obligated to pay Collins for the
second stage of contract work completed ($5,000).
STRATEGIC PLAN RELATIONSHIP
The City of De 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 Public Art Committee agenda item contributes most directly to the following KFA and goal:
Related Key Focus Area: Economic Development
Related Goal: 4.4 Provide and support outstanding leisure, cultural, and
educational opportunities
EXHIBITS
Exhibit 1 Agenda Information Sheet
Exhibit 2 Artist Sole Source Letter
Exhibit 3 Architect Sole Source Letter
Exhibit 4 Artist Contract- File 6607
Exhibit 5 Architecture & Engineering Contract-File 6796
Exhibit 6 PAC April 5, 2018 Meeting Minutes
Exhibit 7 PD Public Arts Ordinance
Exhibit 8 Presentation
Respectfully submitted:
Caroline Booth
Director of Economic Development
Prepared by:
Michelle Cunningham
Business Development Officer
FILE#6607 1
FILE#6607 2
Exhibit A
Special Terms and Conditions
1.Total Contract Amount
The contract total for services shall not exceed $45,500.Pricing shall be per Exhibit E 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.Pricing
Unit Pricing in Exhibit 1 shall include all fees and costs to provide the goods and services to the
City. Unit pricing for goods shall include delivery costs, F.O.B. Destination
Only firm pricing with no escalation will be accepted for these goods or services.
4.Workers Compensation Insurance
Per Risk Manager, Scott Payne, for this project, the
Workers Compensation requirement has been removed as Paula Blincoe Collins is the sole
employee. Any additional assistants or technicians will be paid separately.
Contract #6607Page 3of 30
FILE#6607 3
Exhibit B
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
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
Supplier. No Terms and Conditions contained in
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
-of-way.
1.. The Contractor shall fully and timely provide all
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
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 #6607Page 4of 30
FILE#6607 4
6.DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be
shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and
Conditions. Unless otherwise state
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
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
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
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,
ies.
10.WORKFORCE
A. The Contractor shall employ only orderly and competent workers, skilled in the performance
of the services which they will perform under the Contract.
B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while
engaged in participating or responding to a solicitation or while in the course and scope of
delivering goods or services under a City of Denton contract or on the City's property .
i. use or possess a firearm, including a concealed handgun that is licensed under state law,
except as required by the terms of the contract; or
ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on
the job.
C. If the City or the City's representative notifies the Contractor that any worker is incompetent,
Contract #6607Page 5of 30
FILE#6607 5
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
11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL
REGULATIONS
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,
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
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
address and, if applicable, the tax identification number on the invoice must exactly match the
C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables
order number clearly identified. Invoices shall also include a tabulation of work-hours at the
appropriate rates and grouped by work order number. Time billed for labor shall be limited to
hours actually worked at the work site.
D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced
amount.
The City will furnish a tax exemption certificate upon request.
13.PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within
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thirty (30) calendar days of
in Accounts Payable, whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid
balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the
maximum lawful rate; except, if payment is not timely made for a reason for which the City
may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after
the grounds for withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the
partial shipment or delivery, as stated above, provided that the invoice matches the shipment or
delivery.
D. The City may withhold or set off the entire payment or part of any payment otherwise due the
Contractor to such extent as may be necessary on account of:
i. delivery of defective or non-conforming deliverables by the Contractor;
ii. third party claims, which are not covered by the insurance which the Contractor is
required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property
which is not covered by insurance required to be provided by the Contractor;
timespecified 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
opriated and available for
this contract. The absence of Appropriated or other lawfully available funds shall render the
Contract null and void to the extent funds are not Appropriated or available and any deliverables
delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor
written notice of the failure of the City to make an adequate Appropriation for any fiscal year to
pay the amounts due under the Contract, or the reduction of any Appropriation to an amount
insufficient to permit the City to pay its obligations under the Contract. In the event of none or
inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City.
14.TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the
term of this contract, the contractor shall bill and the City shall reimburse contractor for all
reasonable and approved out of pocket expenses which are incurred in the connection with the
performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by
the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise
negotiated.
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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
under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising
under
other than those previously asserted in writing and not yet settled.
16.SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost
of any special tooling or special test equipment fabricated or required by the Contractor for the
purpose of filling this order, such special tooling equipment and any process sheets related thereto
shall become the property of the City and shall be identified by the Contractor as such.
17.RIGHT TO AUDIT:
A. The City shall have the right to audit and make copies of the books, records and computations
pertaining to the Contract. The Contractor shall retain such books, records, documents and other
evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress
or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are
completed and resolved. These books, records, documents and other evidence shall be available,
within ten (10) business days of written request. Further, the Contractor shall also require all
Subcontractors, material suppliers, and other payees to retain all books, records, documents and
other evidence pertaining to the Contract, and to allow the City similar access to those documents.
All books and records will be made available within a 50 mile radius of the City of Denton. The
cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater.
If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel
costs, must be borne by the Contractor which must be payable within five (5) business days of
receipt of an invoice.
B. Failure to comply with the provisions of this section shall be a material breach of the Contract
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 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
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has been approved, the Contractor is additionally required to submit a monthly Subcontract
Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day
of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the
terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict
accordance with the provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract
without the prior written consent of the City and the Contractor. The City may require, as
a condition to such further subcontracting, that the Subcontractor post a payment bond in
form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including
any claims for additional payments, damages or otherwise, to the Contractor in sufficient
time to enable the Contractor to include same with its invoice or application for payment
to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their
contract, insurance in the type and amounts specified for the Contractor, with the City
being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same extent
as the Contractor is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the
Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions.
Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual
relationship between the City and any such Subcontractor, nor shall it create any obligation on the
part of the City to pay or to see to the payment of any moneys due any such Subcontractor except
as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
19.WARRANTY-PRICE:
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
B. The Contractor certifies that the prices in the Offer have been arrived at independently without
consultation, communication, or agreement for the purpose of restricting competition, as to any
matter relating to such fees with any other firm or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the
Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current
prices on orders by others for like deliverables under similar terms of purchase.
20.WARRANTY TITLE: The Contractor warrants that it has good and indefeasible title to all
deliverables furnished under the Contract, and that the deliverables are free and clear of all liens,
claims, security interests and encumbrances. The Contractor shall indemnify and hold the City
harmless from and against all adverse title claims to the deliverables.
21.WARRANTY DELIVERABLES: The Contractor warrants and represents that all
deliverables sold the City under the Contract shall be free from defects in design, workmanship or
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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
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
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
ransferred to the City, the
Contractor shall assist and cooperate with the City to the fullest extent to enforce such
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
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
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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
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
en
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
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
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,
-
judgment interest at the maximum lawful rate. Additionally, in the event of a default by the
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
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Contract, in whole or in part, without c
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, t
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,
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CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR
THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN 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.
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.
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
nsation
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
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.
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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.
notice of erosion of the aggregate limits below occurrence limits for all applicable
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
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
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.
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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
and its use of the deliverables infringes the intellectual property rights of any third party; or (ii)
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-
is 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 acc
inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the City or its licensors consider confidential)
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
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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
such deliverables ari
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
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
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,
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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
Interest Questionnaire.
44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an
employer/employee relationship, a partnership, or
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,
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
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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
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
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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:
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas 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
approvedby 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:
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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:
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded
requirements)
The following federally funded requirements are applicable. A. Definitions. As used in this
paragraph
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Contractor, the acquisition cost, including transportation
costs to the place of incorporation into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition, plus
allocable overhead costs, but excluding profit. Cost of components does not include any costs
associated with the manufacture of the end product.
iii. "Domestic end product" means-
(1) An unmanufactured end product mined or produced in the United States; or
(2) An end product manufactured in the United States, if the cost of its components mined,
produced, or manufactured in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind as those that the agency
determines are not mined, produced, or manufactured in sufficient and reasonably available
commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected,
and prepared for processing in the United States is considered domestic.
iv. "End product" means those articles, materials, and supplies to be acquired under the contract
for public use.
v. "Foreign end product" means an end product other than a domestic end product.
vi. "United States" means the 50 States, the District of Columbia, and outlying areas.
B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products
for supplies acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this
Contract; but will consider for approval foreign articles as domestic for this product if the articles
are on a list approved by another Governmental Agency. The Offeror shall submit documentation
with their Offer demonstrating that the article is on an approved Governmental list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act
Certificate".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all
information presented in any response to this contract, whether amended or not, except as
prohibited by law. Selection of rejection of the submittal does not affect this right.
58. LICENSE FEES OR TAXES:Provided the solicitation requires an awarded contractor or
supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the
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respondent.
59.PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as
defined by the United States Department of Labor Davis-Bacon Wage Determination at
http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov
for Denton County, Texas (WD-2509).
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor
or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent
must comply with all applicable laws at all times, including, without limitation, the following: (i)
§36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code,
which prohibits the offering or conferring of benefits to public servants. The Respondent shall give
all notices and comply with all laws and regulations applicable to furnishing and performance of
the Contract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-
site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530
of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law employees.
Respondent is responsible for both federal and State unemployment insurance coverage and
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
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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
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.rms and conditions
4.Purchase order
5.Supplier terms and conditions
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Exhibit C
INSURANCE REQUIREMENTS AND
ATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations, which
the successful contractor shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the contracted work has been completed and accepted by
the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance
including any applicable addendum or endorsements, containing the contract number and
title of the project. Contractor may, upon written request to the Purchasing Department,
ask for clarification of any insurance requirements at any time; however,Contractor shall
not commence any work or deliver any material until he or she receives notification that
the contract has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted:
Each policy shall be issued by a company authorized to do business in the State of Texas
with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions
with respect to the City, its officials, agents, employees and volunteers; or, the contractor
shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents,
employees, and volunteers.
Cancellation: City requires 30 day written notice should any of the policies
described on the certificate be cancelled or materially changed before the
expiration date.
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Should any of the required insurance be provided under a claims made form, Contractor
shall maintain such coverage continuously throughout the term of this contract and,
without lapse, for a period of three years beyond the contract expiration, such that
occurrences arising during the contract term which give rise to claims made after
expiration of the contract shall be covered.
Should any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limit providing for claims investigation or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either double the
occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse date.
If insurance is not reinstated, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of the Contract,
or longer, if so noted:
\[X\] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00
shall be provided and maintained by the Contractor. The policy shall be written on an
occurrence basis either in a single policy or in a combination of underlying and
umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations, products
and completed operations, independent contractors and property damage
resulting from explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this
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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
that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00
combined bodily injury and property damage per occurrence with a $1,000,000.00
aggregate.
\[ \] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the
contractor or if a contractor leases or rents a portion of a City building. Limits of not less
than each occurrence are required.
\[ \] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
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\[ \] 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
Said coverage may be
the existing CGL coverage; through and
Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11,
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
ployees,
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.
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ATTACHMENT 1
\[X\]
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
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project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
2. no later than seven days after receipt by the contractor, a new certificate
of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the project.
F. The contractor shall retain all required certificates of coverage for the duration
of the project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail
or personal delivery, within 10 days after the contractor knew or should have
known, of any change that materially affects the provision of coverage of any
person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
its employees providing services on the project, for the duration of the
project;
2. provide to the contractor, prior to that person beginning work on the project,
a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the project, for the duration
of the project;
3. provide the contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the duration
of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on the
project; and
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b. a new certificate of coverage showing extension of coverage, prior to the
end of the coverage period, if the coverage period shown on the current
certificate of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of any
change that materially affects the provision of coverage of any person
providing services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all
employees of the contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes and
payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured, with the
commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the contractor to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K.Th
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.
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DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
CONTRACT 6796
THIS 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,
nd Kirkpatrick Architecture Studio, with its
corporate office at 100 West Mulberry, Denton, Texas, 76201,
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 architect or engineer, as an
independent contractor. The Design Professional hereby agrees to perform the services as described herein and
in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section
4, in connection with the Project. The Project shall include, without limitation, the installation of sculpted brick
panels on the south façade of the p
SECTION 2
COMPENSATION
The Owner shall compensate the Design Professional as follows:
2.1 BASIC SERVICES
2.1.1 For Basic Services the total compensation shall not exceed $ 9,000, per Exhibit B.
2.1.2 Progress payments for Basic Services shall be paid based upon the Design Professional estimate of the
percentage of the work effort that has been completed.
2.2 ADDITIONAL SERVICES
2.2.1 Compensation for Additional Services see Exhibit B, which includes the fee/rate schedule
2.2.2 Compensation for Additional Services of consultants, including additional structural,
mechanical and electrical engineering services shall be based on a multiple of _N/A__ times
the amounts billed to the Design Professional for such additional services.
2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of _1.1____ times the expenses
incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the
Project as defined in the General Conditions but not to exceed a total of $300 without the prior written approval of
the Owner.
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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 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.
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:
1. City of Denton General Conditions to Agreement for Architectural or Engineering Services
(Exhibit A)
2. (Exhibit B)
3. House Bill 89 Government Code 2270 Verification (Exhibit C)
4. Senate Bill 252 Government Code 2252 Certification (Exhibit D)
The parties agree to transact business electronically. Any statutory requirements that certain terms be in writing
will be satisfied using electronic documents and signing. Electronic signing of this document will be deemed an
original for all legal purposes.
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This Agreement is signed by the parties hereto effective as of the date first above written.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
TODD HILEMAN, CITY MANAGER
JENNIFER WALTERS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
By: _________________________________
KIRKPATRICK ARCHITECTURE STUDIO
DESIGN PROFESSIONAL
BY: __________________________________
__________________________________
Email Address
__________________________________
Phone
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
EXHIBIT A
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 (th
ign Professional's employees and consultants as
enumerated in Articles
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
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 scribed 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.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 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.
2.3.2 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.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 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.
2.4.2 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.
2.4.3 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.
2.4.4 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
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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 Construction
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 professionalss the administration
shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be
amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the
Standard Specifications for Public Works Construction by the North Central Texas Council of 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 furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or
payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in 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 omis-
sions. 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 cor-
rectable 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 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 judgment 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
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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 making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance
by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this
Agreement and in the absence of 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 Construction Documents during
the Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
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.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 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;
2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or
3. due to changes required as a result of the Owner's failure to render decision in a timely manner.
3.3.2 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.
3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with
the replacement of such work.
3.3.5 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.
3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work.
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3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto.
3.3.8 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.
3.3.9 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
3.3.9.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites.
3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the
Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof.
3.4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner.
3.4.7 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.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities.
3.4.12 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.
3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related
equipment.
3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty
period of the Contract for Construction.
3.4.15 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.
3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural
practice.
3.4.17 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 con-
struction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional.
3.4.18 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
der this Subsection 3.4.18.
ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design
constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci-
fically described in Subsection 2.2.1.
4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies
related to all of these costs.
4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this
Agreement.
4.4 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.
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4.5 Where applicable, the Owner shall furnish 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 furnish 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 re-
sistivity 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 furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials,
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 con-
tingencies 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.
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 construction 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 submission
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
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
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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 p
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 cooperate 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.
7.3 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.
7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non-
performance 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, holidays,
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.
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.
8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1 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.
8.3.2 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.
8.3.3 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.
8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
8.4.1 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.
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
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
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
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 in
Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or
modified wi 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.
11.3 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
11.4 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 extels shall not include the Owner's
confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi-
dential or proprietary. 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.
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
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: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
EXHIBITB
KAS
02 March 2018
Lt. David Mays
Police Department
City of Denton
301 E. Hickory Street
Denton, Texas 76205
Re:Project Coordination for Public Art Project
Dear Lt. Mays:
Thank you for this opportunity to once again provide professionaldesign services for the City of
Denton.
Project Understanding
The project is for the installation of sculpted brick panels on the south façade of the police department’s
headquarters.
Scope of Basic Services
KAS’ services include those necessary to coordinate with the artist and between the artist and the
Owner to facilitate the installation of the art.
Phase One – Information Gathering and Schematic Design
1.1.Site Visit–KASwill visit the site as necessary to become familiar with project
conditions and to facilitate consultant visits.
1.2.Consultation–After review of project conditions and artist needs, KAS will consult
with the Owner about detailing options, sequencing, aesthetic matters, and other
related issues. KAS’structural engineering consultant will review the plan to saw cut
portion of“eyebrow”off
Phase Two – Installation
2.1.Site Observation–KAS will perform periodic site visits to assess progress, advise
on any water infiltration detailing, and other related installation issues.
Compensation
Compensation to KAS for Basic Services, Additional Services, and Reimbursable Expenses shall be as
described below.
Basic ServicesCompensation for Basic Services shall bebilling hourly and shall not
exceed $9,000without owner.authorization.
Reimbursable Expenses-KAS includes the following in our scope
1.In house printing
100 West Mulberry940/387 .8182tel
940/383.0262fax
Denton,Texas
76201www.k-a-studio.com
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
Page 2March 2, 2018
2.Phone calls
3.Travelwithin north Texas and Oklahoma
The following are not included in Basic Services and shall be billed reimbursable expense and
shall be provided to the Owner at the cost invoiced to KAS plus ten percent (10%).The total
cost shall for printing shall not exceed $300 without the written permission of the owner.
1.Printing for presentations, Owner, meetings, and regulatory review
Basic Services will be invoiced on the basis of personnel time and expenses.
James R. Kirkpatrick$175/hour
David M. Robinson$150/hour
Technical StaffII$105/hour
Technical Staff I$95/hour
Items Outside of Scope of Work or Requiring Additional Services
1.Redesigns, new designs, meetings and other costs related to significant changes in scope of
work or significant changes to approved designs. .
Should you have any questions or require additional information, please contact me at your
convenience.
Best Regards,
David M. Robinson, AIA
KAS
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, 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 the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1.
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. -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.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business 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 company named above 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. 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
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: DDB4A042-B562-4FAD-A64F-3E9E0C10AE6B
Exhibit
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after
the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
Name of vendor who has a business relationship with local governmental entity.
1
2
Check this box if you are filing an update to a previously filed questionnaire.
th
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7 business
day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3
Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
Certificate Of Completion
Envelope Id: DDB4A042B5624FADA64F3E9E0C10AE6BStatus: Sent
Subject: Please DocuSign: City Council Contract 6796 - PSA
Source Envelope:
Document Pages: 17Signatures: 5Envelope Originator:
Certificate Pages: 6Initials: 0Karen E. Smith
AutoNav: Enabled901B Texas Street
EnvelopeId Stamping: EnabledDenton, TX 76209
Time Zone: (UTC-06:00) Central Time (US & Canada)karen.smith@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: OriginalHolder: Karen E. SmithLocation: DocuSign
4/18/2018 4:32:57 PM karen.smith@cityofdenton.com
Signer EventsSignatureTimestamp
Karen E. SmithSent: 4/18/2018 4:39:17 PM
Completed
karen.smith@cityofdenton.comViewed: 4/18/2018 4:39:35 PM
Purchasing ManagerSigned: 4/18/2018 4:41:07 PM
Using IP Address: 129.120.6.150
City of Denton
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
James KirkpatrickSent: 4/18/2018 4:41:10 PM
jim@k-a-studio.comViewed: 4/19/2018 11:16:33 AM
Kirkpatrick Architecture StudioSigned: 4/19/2018 12:00:18 PM
Security Level: Email, Account Authentication
Using IP Address: 97.94.216.142
(None)
Electronic Record and Signature Disclosure:
Accepted: 4/19/2018 11:16:33 AM
ID: 6b5e84fc-9b86-4c42-9ce3-3a1b518471ba
Larry CollisterSent: 4/19/2018 12:00:21 PM
larry.collister@cityofdenton.comResent: 4/23/2018 9:54:52 AM
First Assistant City AttorneyResent: 4/23/2018 10:00:08 AM
City of DentonResent: 4/24/2018 10:10:12 AM
Using IP Address: 129.120.6.150
Security Level: Email, Account Authentication Resent: 4/25/2018 2:20:09 PM
(None)
Resent: 4/30/2018 9:57:41 AM
Resent: 5/1/2018 9:58:14 AM
Viewed: 5/1/2018 10:43:58 AM
Signed: 5/1/2018 10:44:15 AM
Electronic Record and Signature Disclosure:
Accepted: 9/26/2017 2:27:28 PM
ID: 01f5f868-f109-4e29-ad49-21db9046c882
Karen E. SmithSent: 5/1/2018 10:44:18 AM
karen.smith@cityofdenton.com
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Signer EventsSignatureTimestamp
Todd Hileman
Todd.Hileman@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Accepted: 7/25/2017 11:02:14 AM
ID: 57619fbf-2aec-4b1f-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 EventsSignatureTimestamp
Editor Delivery EventsStatusTimestamp
Agent Delivery EventsStatusTimestamp
Intermediary Delivery EventsStatusTimestamp
Certified Delivery EventsStatusTimestamp
Carbon Copy EventsStatusTimestamp
Sherri ThurmanSent: 4/19/2018 12:00:20 PM
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
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
Michelle Cunningham
michelle.cunningham@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Notary EventsSignatureTimestamp
Envelope Summary EventsStatusTimestamps
Envelope SentHashed/Encrypted5/1/2018 10:44:18 AM
Payment EventsStatusTimestamps
Electronic Record and Signature Disclosure
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
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MINUTES
CITY OF DENTON
PUBLIC ART COMMITTEE
April 5, 2018
After determining that a quorum was present, the Public Art Committee of the City of Denton,
Texas, convened on Thursday, April 5, 2018, at 4:04 p.m. The meeting was held in the Civic
Center Conference Room at 321 E. McKinney, Denton, Texas.
PRESENT: Michelle Lynn, Millie Gilles, Jodi Ismert, Brian Wheeler, Guy Bruggeman,
Monet Franklin, and Joe Duncan
ABSENT: Jerry Veeder and Ed Steele
STAFF PRESENT: Bryan Langley, Caroline Booth, Mark Nelson, David Mays,
Michelle Cunningham, Christina Davis, and Michelle Coughlin
A. PAC18-011 Consider approval of the minutes of the March 5, 2018 meeting.
Lynn made a motion to approve the minutes of the March 5, 2018,
meeting. Duncan seconded the motion. The motion was approved
unanimously by a vote of 7-0.
B. PAC18-006 Receive a report, hold a discussion, and make a recommendation to City
Council regarding public art related to transportation projects at
I-35 Brinker Road and I-35/Loop 288.
Nelson gave a presentation to the PAC regarding public art related to
transportation projects at I-35 Brinker Road and I-35/Loop 288. Nelson
mentioned that now, while construction is taking place, is the ideal time
to make a recommendation regarding number of medallions and location
preferences. Nelson also suggested the PAC consider whether they would
like to have the medallions lighted, as engineering services would need to
be factored in, and to keep in mind, the medallions at Loop 288 were
temporary. Ismert asked about the cost for moving the medallions.
Nelson also asked if the committee if they would like to consider an
overall theme. Bruggeman suggested they stay with the idea of the
medallion, not really a theme. Wheeler ask if the committee would prefer
one design for every location. Lynn suggested there should be a coherent
design. The number of medallions was discussed and Nelson mentioned
that for now, the number of medallions and locations was the main
information that he was looking for.
Bruggeman made a motion for staff to price the cost of weight and
electrical engineering analysis for 4 medallions at each location, so that
the committee could decide based on cost. Wheeler and Lynn seconded
the motion. The motion was approved unanimously with a vote of 7-0. It
was determined that it would take 30-60 days for the RFQ, and then staff
would bring information back to the committee.
C. PAC18-007 Receive a report, hold a discussion, and give staff direction regarding
communications and marketing for public art in Denton.
At the meeting in March, the PAC asked for ways to inform the
community about commissioned pieces, and would like to learn of ways
to attract artists so they can bid on commissioned pieces. Davis reported
that through staff research, we learned that the PAC has a budget for art,
but not for marketing.
With that, Davis said that Economic Development staff came up with a
plan to accomplish the communications and marketing goals of the PAC
by using internal resources: Economic Development reprographics
budget dollars, staff time to complete tasks, and collaboration with the
City Public Communications office staff.
Davis presented a draft plan to the PAC, and the PAC was very pleased
and complimentary of the draft plan, the committee looked forward to
moving ahead and thanked staff for the outstanding work that had been
done to consider the plan and use available resources, committee
members were particularly excited about the Google public art map and
asked if Davis would provide the link for them. This also spurred
additional ideas amongst the PAC members as to how to utilize the newly
available resources at the upcoming Arts & Jazz festival.
D. PAC18-005 Receive a report, hold a discussion, and make a recommendation to City
Council regarding a public art project on the exterior of the Denton Police
Department facility.
A summary of previous discussions regarding a public art project on the
exterior of the Denton Police Department facility was provided to the PAC
in the back-up materials for this meeting as it was determined that no
formal recommendation was made from the committee to the City Council
regarding the project. As such, work on the project was has been placed
on hold so that the correct recommendation and approval process can be
followed.
Lieutenant David Mays, from the Denton Police Department gave the
presentation regarding a public art project on the exterior of the Denton
Police Department Facility. Mays reported on the commission of two brick
sculptures for the entrance to the Police Station. This artwork, two brick
sculpture panels,
brick sculpture currently located at the entranceway of the Police Station.
There was discussion amongst the PAC as to opening the project for a
formal bid process, and not wanting to repeat this style of making a
decision in the future. The PAC wanted assurance that future projects will
be handled
procedures for procurement. Langley assured the PAC, in keeping with the
structure that is now in place, that the RFQ process would be utilized
moving forward.
The PAC agreed that due to all the work that had been completed, the
coherent conceptual designs, historical research, and time that has already
been invested by the artist, Paula Collins, that it would be prudent to move
forward with the designs as presented. It was also agreed that only the
funds that have been dedicated would be used $45,000 from HOT funds
and the do-not-exceed amount of $9,000 for architectural needs.
Giles made a motion to recommend to City Council that $45,000 from HOT
funds be used to pay for the project, along with the do-not-exceed amount
of $9,000 to be used for architectural needs, and that Paula Collins would
be commissioned to create this public art project. Along with the request
that didactics be provided to explain who each figure is on the panel of
historical Police Department figures on the two brick sculpture panels
that will be created by Paula Collins.
Franklin seconded the motion. The motion was approved by a vote of
4 to 3.
E. PAC18-008 Staff Reports:
1. Update on the Martin Luther King, Jr. Recreation Center Public Art
project.
Booth reported that the RFP for this public art project was issued on
Monday April 2, 2018 and thanked they PAC for their
recommendations on artists who wanted to receive direct notification
of the RFP.
2. Update on the location of Denton of Denton Fire-Department related
historic photos.
Booth reported that Cunningham located the historic photos:
- Two are at Fire Station #2
- Two are located at City Hall in the Finance Conference Room
- One is located in the museum at the Central Fire Station.
Giles mentioned that Chief Hedges would like to have the two
historical photos that are in the Finance Conference Room for the
viewing room at soon to come on Fire Station # 4, which is
anticipated to open in two months. Bruggeman mention the
original intent for these photos was to be displayed in the Fire
Station, as they have community rooms.
The photos will be moved with the permission of the PAC.
2. CONCLUDING ITEMS
-Giles asked about Café, Booth mentioned that leadership in Purchasing has now been asked to
look into incorporating Café into the process, as it had not been vetted by Purchasing before
the idea of Café was brought before the PAC. Langley mentioned that staff would get back to
the PAC with an update.
-Booth encouraged the PAC to add any items they would like staff to research during the
concluding items section of the meeting, and mentioned this would be a good way for staff to
keep track of future topics.
-Regarding QR Codes Davis asked if the PAC had any thoughts as to how they would like to
see the QR Codes displayed at the Arts & Jazz Fest. The PAC responded that they would like for
staff to display them as is easiest for Economic Development staff, and easiest way for
attendees to take a photo at the individual locations.
The meeting adjourned at 5:37 p.m.
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-776,Version:1
AGENDA CAPTION
ConsideradoptionofanordinanceoftheCityCounciloftheCityofDenton,aTexashome-rulemunicipal
corporation,providingfor,authorizing,andapprovingtheexecutionbytheMayorofaPowerPurchase
Agreement(“PPA”)betweentheCityofDenton,aTexashome-rulemunicipalcorporation(“Denton”),and
BluebellSolarII,LLC,aDelawarelimitedliabilitycompany(“BluebellSolarII”);approvingandauthorizing
theacceptanceandapprovalbytheCityManager,orhisrespectivedesignee,ofguarantiesandlettersofcredit
issuedbyBluebellSolarIIandNextEraEnergyCapitalHoldings,Inc.,aDelawarecorporation(“NextEra
Holdings”),furthersecuringtheobligationsofBluebellSolarIItotheCityforthebenefitoftheCity;
approvingtheexecutionofsuchotherandfurtherrelateddocumentsdeemednecessarytoeffectuatethis
transactionbytheCityManager,orhisdesignee,whichareincidentorrelatedtothePPA;findingthatthePPA,
asredacted,pertainstoa“competitiveelectricmatter”assetforthundertheprovisionsof§§551.086and
552.133oftheTexasGovernmentCode,asamended;findinganddeterminingthattheTexasGovernmentCode
§252.022(a)(15)appliestosaidPurchasePowerAgreement,exemptingtheprocurementofelectricityfromthe
requirementsofcompetitivebidding;findingthatthepurchaseofcapacityandenergymadebyDentonunder
the terms of the PPA are in the public welfare; authorizing the expenditure of funds; providing an effective date.
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Denton Municipal Electric
CM/ DCM/ ACM: Todd Hileman
DATE: May 8, 2018
SUBJECT
Consider adoption of an ordinance of the City Council of the City of Denton, a Texas home-rule
municipal corporation, providing for, authorizing, and approving the execution by the Mayor of a Power
exas home-rule municipal corporation
approving and authorizing the acceptance and approval by the City Manager, or his respective designee,
of guaranties and letters of credit issued by Bluebell Solar II and NextEra Energy Capital Holdings, Inc., a
City for the benefit of the City; approving the execution of such other and further related documents
deemed necessary to effectuate this transaction by the City Manager, or his designee, which are incident
forth under the provisions of §§551.086 and 552.133 of the Texas Government Code, as amended; finding
and determining that the Texas Government Code §252.022(a)(15) applies to said Purchase Power
Agreement, exempting the procurement of electricity from the requirements of competitive bidding;
finding that the purchase of capacity and energy made by Denton under the terms of the PPA are in the
public welfare; authorizing the expenditure of funds; providing an effective date.
BACKGROUND
On June 22, 2017, the City issued a Request for Proposals (RFP 6496) to purchase solar and/or wind energy
for an extended term. The in-service date of bid projects was to be no later than December 31, 2020. Pricing
was requested in 25 MW blocks. Proposals were due by October 4, 2017 and were to be valid for 120 days
(or a later date if extended).
Forty one (41) separate entities submitted proposals as follows:
89 different projects
846 unique offers (when pricing blocks considered)
Project size varied from 25 MW to 300 MW
Proposals received for projects in five different ERCOT zones North, Houston, South, West and
Panhandle
Start dates from mid-2019 through 2021.
As per the RFP, proposed projects were evaluated based on price, location (i.e. congestion impacts), hourly
production profile, and past performance/experience on projects of similar magnitude/complexity. The
renewable resource planning consultant (Enterprise Risk Consulting).
The Bluebell Solar II, LLC. project proposal by NextEra Energy Capital Holdings, Inc. was judged to be
the highest ranking of the respondents. (Bluebell Solar II, LLC. is a subsidiary created by NextEra Energy
to own and operate their proposed project.)
Key Power Purchase Agreement (PPA) terms (non-confidential) are as follows:
Project location is Sterling County, Texas (approximately 200 miles west of Denton)
Technology is solar photovoltaic using crystalline solar cells/panels
Size is 100 MW
Term is 15 years from commercial operation date
Operational no later than December 31, 2020
Price is very competitive and well below average projected market energy prices
As further background, this project will be located adjacent to the 30 MW Bluebell Solar I project that is
under construction and committed to the City of Denton. The Bluebell Solar I project is scheduled to
produce energy by December 31, 2018 for a twenty year term.
OPTIONS
1. Approve the solar Power Purchase Agreement with Bluebell Solar II, LLC. to increase renewable
2. Do not approve the solar Power Purchase Agreement with Bluebell Solar II, LLC. and seek other utility
scale renewable opportunities.
RECOMMENDATION
Staff recommends that the City Council approve the attached Ordinance authorizing the Mayor to execute
a Power Purchase Agreement with Bluebell Solar, LLC. and doing such other things as provided for in the
Ordinance.
FISCAL INFORMATION
The addition of this solar purchase power agreement is projected to generate power supply cost benefits for
Denton Municipal Electric since the average cost of Bluebell II electricity under the PPA would be less
than its value in the ERCOT market for the foreseeable planning horizon.
STRATEGIC PLAN RELATIONSHIP
-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
1. Agenda Information Sheet
2. Ordinance 2018 - _____
Respectfully submitted:
George Morrow
DME General Manager
Prepared by:
George Morrow
DME General Manager
EXECUTION VERSION
POWER PURCHASE AGREEMENT NT
By and Between
CITY OF DENTON, TEXAS ON, TEXAS TEXAS
andandand
BLUEBELL SOLAR II, LLC BLUEBELL SOLUEBELL
dated as of
____________, 2018
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-sensitive,
proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas
Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure.
Exhibit 'A'
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INTERPRETATION .......................................................................... 1
1.1Definitions. ................................................................................................................................. 1
1.2Interpretation. ........................................................................................................................... 16
ARTICLE 2 TERM................................................................................................................................... 17
2.1Term. .................................................................................................................................................. 17.
ARTICLE 3 OBLIGATIONS AND DELIVERIES ................................................................................. 17........................
3.1Product. ..............................................................................................................................................................................
17
3.2Purchase and Sale. ...................................................................................................................................................................
1818
3.3Contract Price. ....................................................................................................................................................................................
..... 1818
3.4Capacity Attributes. ...............................................................................................................................................................................
........... 181
3.5Performance Excuses. ...............................................................................................................................................................................
..... 18
3.6Buyer’s Failure to Accept Delivery of Product. ....................................................................... 19...................................................................
3.7Seller’s Failure to Deliver Product. .......................................................................................... 19..................................................................
.................
3.8Offsets, Allowances and Environmental Attributes. ................................................................ 19...............................................................................
3.9Station Service. ...................................................................................................................................................................................
........ 20
3.10Transmission. .....................................................................................................................................................................................
........ 20
3.11Scheduling. .......................................................................................................................................................................................
........................ 21
3.12Sales for Resale. ..........................................................................................................................................................................
23
3.13Operating Procedures. ..........................................................................................................................................................................
23
3.14Standards of Care. ................................................................................................................................................................................
... 23
3.15Curtailment. ......................................................................................................................................................................................
.............. 23
3.16Outage Notification. ..............................................................................................................................................................................
................... 25
3.17Operations Logs and Access Rights. ........................................................................................ 25s Rights. ...............................ghts. ...................
3.18Availability Forecasting. .........................................................................................................................................................................
....... 26
3.19Weather Station. ..................................................................................................................................................................................
........ 27
3.20Change in Law. ....................................................................................................................................................................................
......... 27
3.21Contract Quantity and Guaranteed Energy Production. ........................................................... 28ty and Guaranteed Energy Prd Guaranteed En
ARTICLE 4 PROJECT DESIGN AND CONSTRUCTION.................................................................... 30DESIGN AND CONSTRUCGN AND CONS
4.1Project Development. ..........................................................................................................velopment. ...........................lopment. .....................
30
4.2Guaranteed Commercial Operation. ......................................................................................... 31eed Commercial Operation. Commercial Oper
4.3Cure Period and Delay Damages. ............................................................................................. 32Period and Delay Damages.and Delay Dam
4.4COD Conditions. ...............................................................................................................OD Conditions. ....................tions. .................
32
ARTICLE 5 METERING AND MEASUREMENT ................................................................................ 33E 5 METERING AND MEAETERING AND
5.1Project Metering. .............................................................................................................Project MeterinProject Metering. ....................
33
5.222Metering System. ..............................................................................................................Metering SysteMetering System. .............. 33
5.35.35.3Inspection and Adjustment. ....................................................................................................Inspection anInspection and Adj.. 34
ARTICLE 6 EARLY TERMINATION....................................................................................................RTICLE 6 EARLY TERRTICLE 6 EARLY 34
6.1Early Termination. ............................................................................................................Early Termin........ 34
ARTICLE 7 EVENTS OF DEFAULT ...................................................................................................LE 7 EVENTLE 7 .. 36
7.1Events of Default. ............................................................................................................EEvents......... 36
7.2Remedies; Declaration of Early Termination Date. ................................................................. 37
7.3Termination Payment. .............................................................................................................. 38
7.4Notice of Payment of Termination Payment. ........................................................................... 38
7.5Disputes with Respect to Termination Payment. ..................................................................... 38
-i-
Exhibit 'A'
7.6Rights and Remedies Are Cumulative. .................................................................................... 39
7.7Mitigation. ................................................................................................................................ 39
7.8Project Investor Cure Periods. .................................................................................................. 39
ARTICLE 8 PAYMENT .......................................................................................................................... 39
8.1Billing and Payment. .................................................................................................................. 39
8.2Disputes and Adjustments of Invoices. .................................................................................... 40..............
8.3Netting of Payments. ......................................................................................................................................... 40
ARTICLE 9 INSURANCE, CREDIT AND COLLATERAL REQUIREMENTS ................................. 40............................................4
9.1Insurance. ...............................................................................................................................................................................
4040
9.2Grant of Security Interest. ........................................................................................................................................................................
4040
9.3Seller Financial Statements. .......................................................................................................................................................................
..... 414
9.4Performance Assurance. .............................................................................................................................................................................
.... 41
ARTICLE 10 REPRESENTATIONS, WARRANTIES AND COVENANTS ....................................... 43NANTS ..........................................................
10.1Representations and Warranties. .............................................................................................. ....................................................................
.....................43
10.2General Covenants. ................................................................................................................................................................................
................ 44
10.3Seller Covenants. .................................................................................................................................................................................
....... 45
10.4Buyer’s Covenants. .................................................................................................................. 45...........................................................
..
ARTICLE 11 TITLE, RISK OF LOSS, INDEMNITIES ......................................................................... 45S .............................................................................
..
11.1Title and Risk of Loss. ................................................................................................................................................................
45
11.2Indemnities by Seller. ...........................................................................................................................................................................
45
11.3Indemnities by Buyer. .............................................................................................................................................................................
. 46
ARTICLE 12 GOVERNMENTAL CHARGES ....................................................................................... 46ES ................................................................
12.1Cooperation. ......................................................................................................................................................................................
....................... 46
12.2Governmental Charges. .............................................................................................................................................................................
....... 46
ARTICLE 13 CONFIDENTIAL INFORMATION ................................................................................. 47FORMATION ....................MATION ...........
13.1Confidential Information. .....................................................................................................on. ................................................................
.. 47
13.2Texas Public Information Act. .................................................................................................mation Act. ..........................Act. ..................
49
ARTICLE 14 ASSIGNMENT .........................................................................................................NT .....................................................................
... 49
14.1Successors and Assigns. .......................................................................................................nd Assigns. ...........................d Assigns. ..................
..... 49
14.2Assignment by Seller. .........................................................................................................nt by Seller. ...........................by Seller.
...................... 50
14.3Assignment by Buyer. ..........................................................................................................ment by Buyer. .....................by Buyer. ...............
51
14.4Collateral Assignment. ........................................................................................................ateral Assignment. ...............ssignment. ............
52
ARTICLE 15 FORCE MAJEURE ......................................................................................................5 FORCE MAJEURE .........MAJEURE..... 53
15.1Force Majeure Events. .........................................................................................................Force Majeure Events. .......e Majeure Events.....
53
ARTICLE 16 LIMITATIONS ON LIABILITY ...................................................................................... 54LE 16 LIMITATIONS ONLE 16 LIMITATIO
16.16.16.1Disclaimer of Warranties. .....................................................................................................Disclaimer of WDisclaimer of Warran.... 54
16.216.216.2Limitations on Liability. .....................................................................................................Limitations oLimitations on Lia...... 54
ARTICLE 17 DISPUTE RESOLUTION .................................................................................................RTICLE 17 DISPUTE RRTICLE 17 DISPU 55
17.111Intent of the Parties. ........................................................................................................Intent of the .......... 55
17.2Management Negotiations. ......................................................................................................MaManagem. 55
17.3Specific Performance and Injunctive Relief. ............................................................................ 56SSpecifi
ARTICLE 18 NOTICES ............................................................................................................N............... 56
18.1Notices. ..................................................................................................................................... 56
ARTICLE 19 MISCELLANEOUS .......................................................................................................... 57
19.1Effectiveness of Agreement; Survival. ..................................................................................... 57
ii
Exhibit 'A'
19.2Audits. ...................................................................................................................................... 58
19.3Amendments. ............................................................................................................................ 58
19.4Waivers. .................................................................................................................................... 58
19.5Severability. .............................................................................................................................. 58
19.6Standard of Review. ................................................................................................................. 59
19.7Governing Law. ...................................................................................................................................... 59
19.8Waiver of Trial by Jury. .................................................................................................................................... 59
19.9Attorneys’ Fees. ........................................................................................................................ 59.........................................
19.10No Third-Party Beneficiaries. ..........................................................................................................................................................
6060
19.11No Agency. .......................................................................................................................................................................................
........ 6060
19.12Cooperation. .....................................................................................................................................................................................
................ 606
19.13Further Assurances. ..............................................................................................................................................................................
.......... 60
19.14Captions; Construction. ..........................................................................................................................................................................
......... 60
19.15Entire Agreement. ................................................................................................................................................................................
............................. 61
19.16Forward Contract. ................................................................................................................................................................................
................... 61
19.17Counterparts. ....................................................................................................................................................................................
........... 61
Exhibit A Contract Price
Exhibit B Description of Project
Exhibit C Description of Delivery Point and One-Line Diagram t and One-Line Diagram One-Line Diagra
Exhibit D GEP Damages Calculation
Exhibit E Form of Guaranty
Exhibit F Form of Letter of Credit edit
Exhibit G Buyer and Seller Insurance Requirements Insurance Requirements ance Requireme
Exhibit H Commercial Operation Certification peration Certification n Certification
Exhibit I Project Investor Notice Information estor Notice Information Notice Informati
Exhibit J Operating Procedures Criteria g Procedures Criteria g Procedures Criteria
iii
Exhibit 'A'
POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT (this “Agreement”) is made this ___ day of
______, 2018 (the “Effective Date”),by and between BLUEBELL SOLAR II, LLC, a Delaware
limited liability company (“Seller”) and the CITY OF DENTON, TEXAS, a Texas home-rule om
municipal corporation, acting operationally through its Denton Municipal Electric Department, Departmetm
with its principal place of business at 215 E. McKinney Street, Denton, Texas 76201 6201 (“Buyer”)(“Buyer”)uyer
and. Buyer and Seller are each individually referred to herein as a “Party” and collectively as the collectively as the ively as th
“Parties”.
W I T N E S S E T H:
WHEREAS, Seller intends to develop a 100 MW photovoltaic solar energy MW photovoltaic solar eneW photovoltaic solar
generation facility on a site located in Sterling County, Texas (the “(the “the “ProjectPrProjectoject”)”)”); and ; and nd
WHEREAS, Seller desires to sell, and Buyer desires to purchase and receive, the uyer desires to purchase anddesires to purc
Net Output (as defined herein) of the Project, on the terms and conditions set forth herein. erms and conditions set forthconditions se
NOW, THEREFORE, the Parties heretes hereto, for good and sufreto, foo, for good and sufficient consideration,
the receipt of which is hereby acknowledged, inted, intending to be legally bonding to be legally bound, do hereby agree as ding to be
follows:
ARTICLE 1 ARTICLE 1 RTICLE 1
DEFINITIONS AND INTERPRETATION TIONS AND INTERPREONS AND INTE
1.1Definitions.
“AC”means alternating current. ternating current. ing current
“Adjustment Period”ent Period”nt Period”has the meaning set forth in Section 5.3.has the mhas the meaning
“Affiliate”ffiliate”means, with respect to any Person, any entity controlled, directly or indirectly, means, with resmeans, with respect
by such Person, any entity that controls, direy such Person, any entity thh Person, any enctly or indirectly, such Person or any entity
directly or indirectly under common control directly or indirectly undectly or indirectlywith such Person. For the purposes of this
definition, (a) definition, (a) definition, (a) “control” (including, with correlative“control” meanings, the terms “controlled by”
and “under common control with”), as used with rand “under coand “under commoespect to any Person, means the
possession, directly or indirectly, of the powerpossession,possession, direct to direct or cause the direction of the
management, operations, or policies of such Person, whether through the ownership of managemmanagement, o
voting securities or by contract or otherwise; and (b) NextEra Operating Partners, LP, voting secu
NextEra Energy Partners, LP, and their reNNextEra spective subsidiaries, are deemed to be
Affiliates of Seller. AAffilia
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
1
Exhibit 'A'
“Agreement”has the meaning set forth in the first paragraph of this Agreement.
“Applicable Law” means, with respect to any Person or the Project, all laws, statutes,
codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules,
regulations, Governmental Approvals, directives and requirements of all regulatory and
other Governmental Authorities, in each case applicable to or binding upon such Person ch P
or the Project (as the case may be).
“Balancing Authority” means the responsible entity that integrates resource plans ahead ource plans ahead plans ahea
of time, maintains load interchange-generation balance within a Balancing Authority Balancing Authority cing Authority
Area, and supports interconnection frequency in real time.
“Balancing Authority Area” is the collection of generation, transmission, and loads ion, transmission, and loadransmission, and
within the metered boundaries of the Balancing Authority. The Balancing Authority rity. The Balancing Authoty. The Balancing Au
maintains load resource balance within this area.
“Bankrupt” means, with respect to a Party, suchch Party (i) files a petition Party (i) files a petition or otherwise arty (i) files a
commences, authorizes or acquiesces in the commencement of a proceeding or cause of ommencement of a proceedement of a p
action under any bankruptcy, insolvency, reorreorganization or similar leorganization or simganization or similar law, (ii) makes an
assignment or any general arrangement for the benefit of creditors, (iii) otherwise nt for the benefit of credr the
becomes bankrupt or insolvent (however evidenced), (iv) is generally unable to pay its ever evidenced), (iv) is genvidenced),
debts as they fall due, (v) been adjudicated baudicated bankruptcy or has fankruptcy onkruptcy or has filed a petition or an answer
seeking an arrangement with creditors, (vi) reditors, (vi) taken advantaors, (vi) taken adtaken advantage of any insolvency law or
shall have submitted an answer admitting nswer admitting the materiwer admitting ththe material allegations of a petition in
bankruptcy or insolvency proceeding, (vii) become subject to an order, judgment or y proceeding, (vii) become oceeding, (vii) b
decree for relief, entered in an involuntarred in an involuntary case, an involuntary y case, without the application, approval or
consent of such Party by any court of competent jurisdiction appointing a receiver, rty by any court of compy any court of
trustee, assignee, custodian or liquidator, for a custodian or liquidator, forn or liquidsubstantial part of any of its assets and
such order, judgment or decree shall continue dgment or decree shall continnt or decree shall unstayed and in effect for any period of one
hundred eighty (180) consecutive Days, (viii) fahty (180) consecutive Dayshty (180) consecutive iled to remove an involuntary petition in
bankruptcy filed against it within one hundred cy filed against it within onfiled against it witheighty (180) Days of the filing thereof, or
(ix) become subject to an order for reliecome subject to an order e subject to an ef under the provisions of the United States
Bankruptcy Act, 11 U.S.C. § 301. nkruptcy Act, 11 U.S.C. § 30y Act, 11 U.S
“Business Day”“Business Day”usiness Day””” means any day except a Saturday, Sunday or a Federal Reserve Bank means ame
holiday. A Business Day shall open at 8:00 a.holiday. A Buholiday. A Business Dm. Central Prevailing Time and close at
5:00 p.m. Central Prevailing Time. Notwith5:00 p.m. Ce5:00 p.m. Central standing the foregoing, for scheduling
purposes only, the term “Business Day” shall have the meaning gipurposespurposes only, thven to that term from
time to time by NERC on its website (http://www.nerc.com/~oc/offpeaks.html). time to time bmetot
“Buyer”“B“Buyer”has the meaning set forth in the first paragraph of this Agreement.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
2
Exhibit 'A'
“Buyer Curtailment” means any curtailment of delivery of Net Output for reasons
unrelated to a Planned Outage, Forced Outage, Force Majeure and/or aSystem
Curtailment Order, including, for the avoidance of doubt, any reduction or cessation
resulting from offers, bids, plans or schedules for the Project submitted by the QSE or the
exercise of other rights with respect to the Project by the QSE.
“Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce r to redued
generation from the Project by a specific amount of capacity for a specific duration of fic duration ofon
time. A Buyer Curtailment Order shall be issued by Buyer in accordance with Operating ce with Operating h Operatin
Procedures.
“Buyer Curtailment Period” means the period of time during which Seller reduces ing which Seller reduces ch Seller reduces
generation from the Project pursuant to a Buyer Curtailment Order. The Buyer tailment Order. The Buyeent Order. The
Curtailment Period shall be inclusive of the time required for the Project to ramp down d for the Project to ramp dofor the Project to ramp
and ramp up.
“Buyer Excuses”has the meaning set forth in Section 3.5(b).ction 3.5(b)3.5.
“Buyer’s Replacement Costs”has the meaning set forth in Section 3.7(a). ning set forth in Section ng set forth in Section3.7(
“Capacity Attributes” means any current or future defined rent or future defined charafuture defcharacteristic, certificate, tag,
credit, or ancillary service attribute, whether ute, whether general in naher general general in nature or specific as to the
location or any other attribute of the Project inf the Project intended to vaProject intended tended to value any aspect of the capacity
of the Project to produce Energy or ancillary services. rgy or ancillary services. gy or ancillary ser
“Capacity Trade” means a transaction that transfers financial responsibility for capacity ns a transaction that transferansaction that tr
between QSE’s, as set fortet forth in the ERCOT Protocols. h in the ERCOTh in the ERCOT Proto
“Change inLaw”aw”” means any change in or addition to any Applicable Law or ERCOT means any change in omeans any chang
Protocols adopted on or after dopted on or after the date ofdopted on or after the dthe date of this Agreement.
“COD Conditions” Conditions”ditions”means all of the requirements that must be satisfied by Seller as a means means all of
prerequisite to achieving the Commercial Operation Date as set forth in Section 4.4.requisite to achieving the Coe to achievin
“Commercially Reasonable”“Commercially Reasonammercially Re or “Commercially Reasonable Efforts” means, with
respect to any purchase, sale, decision, or respect to anyrespect to any purchaother action made, attempted or taken by a
Party, such efforts as a reasonably prudent business would undertake for the protection of Party, such effParty, such efforts a
its own interest under the conditions affectits owits own interest ing such purchase, sale, decision or other
action, consistent with Prudent Operating Practices, including, without limitation, electric action, consisttionc
system reliability and stability, state or otsystem reliher regulatory mandates relating to renewable
energy portfolio requirements, the cost of suchenenergy p action (including whether such cost is
reasonable), the amount of notice of the need toeaso take a particular action, the duration and
type of purchase or sale or other action, and the commercial environment in which such
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
3
Exhibit 'A'
purchase, sale, decision or other action occurs. “Commercially Reasonable” or
“Commercially Reasonable Efforts” shall be reviewed and determined based upon the
facts and circumstances known, or which could have been known with the exercise of
reasonable efforts, at the time that a sale, purchase, or other action is taken and shall not
be based upon a retroactive review of what would have been optimal at such time.
“Commercial Operation” means that no less than the Project Capacity is operating and perating ang
able to produce and deliver Delivered Energy to Buyer pursuant to the terms of this e terms of thisf th
Agreement.
“Commercial Operation Date” means the date on which (a) Commercial Operation has mmercial Operation has cial Operation has
occurred; (b) Seller shall have delivered to Buyer the Delivery Term Security required ry Term Security required Security required
under Section 9.4(a)(ii); (c) Seller has received all local, state and federal Governmental ate and federal Governmentad federal Govern
Approvals and other approvals as may be required by Applicable Law for the by Applicable Law for by Applicable Law f
construction, operation and maintenance of the Project.
“Confidential Information”has the meaning set forth in Section 13.1.forth in Section h in13.113.
“Contract Price”has the meaning set forth in Section 3.3.in Section n Se3.3.
“Contract Quantity”has the meaning set forth in Section 3.21(a). g set forth in Section rth in Secti3.21(a)
“Contract Year” means a calendar year commencing on January 1 of the year following dar year commencing on Jaear commencing
the Commercial Operation Date of the Project. ate of the Project. te of the Project.
“Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions espect to the Non-Defaultint to the Non-Def
and other similar third party transaction costrd party transaction costs anty transaction cs and expenses reasonably incurred by such
Party either in terminating any arrangeterminating any arrangemeng any ament pursuant to which it has hedged its
obligations or entering into new arrangementsentering into new arrangeming into new arr which replace a Terminated Transaction;
and all reasonable attorneys’ fees onable attorneys’ fees and eonable attorneys’ feesand expenses incurred by the Non-Defaulting Party in
connection with such Terminated Transaction. n with such Terminated Trawith such Terminat
“Credit Rating”redit Rating”tin” means, with respect to any entity, the means, with remeansissuer rating then assigned to such
enentity’s unsecured, senior longtity’s unsecured, senior lo’s unsecured, sen-term debt obligations (not supported by third-party credit
enhancements) or if such entity does not haenhancements) or if suchancements) or ifve a rating for its senior unsecured long-term
debt, then the rating then assigned to suchdebt, then thedebt, then the rating entity as an issues rating by the Rating
Agencies. Agencies. Agencies.
“Cure Payment Period”“Cure PaymeCureP has the meaning set forth in Section 3.21(f).
“Cure“C“CureddPerformance Measurement Period” has the meaning set forth in Section
3.21(d). 3.21(
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
4
Exhibit 'A'
“Daily Delay Damages” means with an amount equal to Forty-One Thousand Six
Hundred Sixty-Six Dollars ($41,666) per day.
“Day Ahead Market” means the ERCOT Day Ahead Market or “DAM”.
“Damage Payment” means an amount equal to the amount to be posted as Project s P
Development Security pursuant to Section 9.4(a)(i).
“Day” or “day”means a period of twenty-four (24) consecutive hours beginning at 00:00 eginning at 00:00 ng at 00:0
hours Central Prevailing Time on any calendar day and ending at 24:00 hours Central 24:00 hours Central 0 hours Central
Prevailing Time on the same calendar day.
“Day-Ahead Availability” Notice has the meaning set forth in Section 3.18(d).n Section tion3.18(d)3.18(d)..
“Deemed Delivered Energy” means the amount of Energy (in MWh) that the Project Energy (in MWh) that the Energy (in MWh) that the
would have generated and delivered to the Delivery Point, but did not generate or deliver Point, but did not generate oint, but did not gen
to the Delivery Point during a Buyer Curtailment Period. The amount of Deemed ment Period. The amount Period. The
Delivered Energy shall be determined using relevant Project availability, weather and relevant Project availabilitt Project ava
other pertinent data for the period of time during the Buyer Curtailment Period. uring the Buyer Curtailmentring the Buyer Curtail
“Defaulting Party”has the meaning set forth in Section 7.1(a). set forth in Section h in Sectio7.1(a).
“Delivered Energy”means all of the Project’s Net of the Project’s Net he Project’s NetOutput delivered to Buyer at the Outp
Delivery Point.
“Delivery Point”means the ns the 345kV point of interconnection between the Seller’s 345kV point 345kV point of i
Interconnection Facilities and the Transmissiilities and the Transmission and the Transmon Operator’s System at Divide Substation,
as specified in the Interconnection Agreement and as further identified in Exhibit C. e Interconnection Agreementnnection A
“Delivery Term”Term”ermmeans the period of time commencing upon the Commercial Operation means the periomeans the period of ti
th
Date and terminating at the end of the fifteenth (15terminating at the end of theminating at the end) Contract Year.
“Delivery Term Security”elivery Term Security”Term Securihas the meaning set forth in Section 9.4(a)(ii). has
“Disclosing Party”“Disclosing Party”sclosing Party”has the meaning set forth in Section 13.1.has th
“Dispute”“Dispute”“Dispute”has the meaning set forth in Section 17.1.hashasthe m
“Downgrade“DownDowngradeg Event”refers to any point in time when (a) if Seller’s Guarantor has a
Credit Rating from three Ratings AgenciCredit Rates, the Credit Ratings from two Ratings
Agencies fall below BBB- from S&P, AAgencieBaa3 from Moody’s, or BBB- from Fitch; or (b) if
Seller’s GuarSellerantor has Credit Rating from only one or two Ratings Agencies, the Credit
Rating from one of the Rating Agencies falls below the applicable thresholds.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
5
Exhibit 'A'
“Early Termination Date”has the meaning set forth in Section 7.2(a).
“Effective Date”has the meaning set forth in the Preamble to the Agreement.
“Emergency” means that an “Emergency Condition” has been declared as provided in ovid
the ERCOT Protocols.
“Energy” means electric energy generated by the Project and available for delivery to the for delivery to the ivery to th
Delivery Point, which shall exclude the electric energy consumed by the Project andshall the Project androject andshall shall
be in the form of three (3)-phase, sixty (60) Hertz, alternating current. ent.
“Energy Trades”has the meaning set forth in ERCOT Protocol 4.4.2. col 4.4.2. 4.2.
“Environmental Attributes” means any and all presently existing or future benefits, sently existing or future besently existing or future b
emissions reductions, environmental air quality credits, emissions reduction credits, credits, emissions reductioedits, emissions red
greenhouse gas emissions, renewable energy credits (as contemplated on the Effective edits (as contemplated on t(as contempl
Date pursuant to PUCT Substantive Rule 25.173(c)(13)), including those granted 25.173(c)(13)), including (c)(13)), incl
sanctioned or issued by federal, state or local authorities, “greenocal authorities, “greenal authorities, “green--e” certificates, e” coffsets
and allowances, green tag or other transferable indicia attributable to the Project during sferable indicia attributable le ind
the Term, howsoever entitled or named, renamed, resulting from theresultingsulting from the avoidance, reduction,
displacement or offset of the emission of any gasion of any gas, chemical ory gas, chems, chemical or other substance, including
any of the same arising out of presently existing or future legislation or regulation of presently existing or futesently existing
concerned with oxides of nitrogen, sulfur or carbon, with particulate matter, soot or itrogen, sulfur or carbon, rogen, sulfur or
mercury, or implementing the United Nating the United Nations Frahe United Natioons Framework Convention on Climate
Change (“UNFCCC”) or the Kyoto Protocol to the UNFCCC or crediting “early action” or the Kyoto Protocol to theKyoto Protocol
emissions reduction, or laws or regulations i, or laws or regulations invws or regulationvolving or administered by the Clean Air
Markets Division of the Environmental Protecn of the Environmental ProEnvironmetion Agency, or any successor state or
federal agency given jurisdiction over a program involving transferability of y given jurisdiction oveven jurisdiction
Environmental Attributes, and any renewable energy certificate reporting rights to such ntal Attributes, and any renetal Attributes, and an
Environmental Attributes. Notwithstanding any other provision hereof, Environmental mental Attributes. Notwithstal Attributes. No
Attributes do not include: (a) any Tax Attriutes do not include: (a) ando not include: butes, (b) state, federal or private grants or
other benefits related to the Project, (c) Net Output. er benefits related to the Profits related to
“Equitable“EquituitttableableDefensesDefenseDefenses””” means any bankruptcy, insolvency, reorganization or other laws m
affecting creditors’ rights generally and, with regard to equitabaffecting crediaffecting creditors’ rigle remedies, the discretion
of the court before which proceedings may be pending to obtain same. of the court beof the court before w
“““ERCOTERCOTERCOTT” means the Electric Reliability Counc” meil of Texas, Inc., or its successor.
“““““ERCOT ProtocolsEERCO” means the document adopted by ERCOT, including any
attachments or exhibits referenced in that attachdocument, as amended from time to time, that
contains the scheduling, operating, planning, reliability, and settlement policies, rules,
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
6
Exhibit 'A'
guidelines, procedures, standards and criteria of ERCOT. For the purposes of determining
responsibilities and rights at a given time, the ERCOT Protocols, as amended in
accordance with the change procedures described in the ERCOT Protocols, in effect at
the time of the performance or non-performance of an action, shall govern with respect to
that action.
“Event of Default”has the meaning set forth in Section 7.1.
“Executives”has the meaning set forth in Section 17.2(a).
“Fitch” means Fitch Ratings, Ltd or any successor thereto, or in the event that there is no he event that there is no ent that there is no
such successor, a nationally recognized credit rating agency.
“Forced Outage” means any unplanned reduction or suspension of the electrical output pension of the electrical ouension of the electrical
from the Project or unavailability of the Project in an amount greater than ten percent n amount greater than ten pn amount greater than ten
(10%) of the Project Capacity in response to a mechanical, electrical, or hydraulic control hanical, electrical, or hydraulnical, electrical, or hy
system trip or operator-initiated trip in response to an alarm or equipment malfunction, or o an alarm or equipment maalarm or equip
any other unavailability of the Project for maintenance or repair that is not a Planned maintenance or repair that isce or repair
Outage, due to a System Curtailment, or the result of aForce Majeure Event. e result of resulaForce Majeure orceMajeE
“Force Majeure Event” means any event or circumstance which wholly or partly y event or circumstance wnt or circu
prevents or delays the performance of any ance of any material obliany materiamaterial obligation arising under this
Agreement, other than the obligation to pay gation to pay amounts due, bto pay amounts amounts due, but only to the extent (1) such
event is not within the reasonable control, dinable control, directly or inable control, direrectly or indirectly, of the Party seeking to
have its performance obligation(s) excused therigation(s) excused thereby,on(s) excused theby, (2) the Party seeking to have its
performance obligation(s) excused thereby n(s) excused thereby has texcused thereby has taken all reasonable precautions and
measures in order to prevent or o prevent or avoid such evenent or avoid sucavoid such event or mitigate the effect of such event on
such Party’s ability to perform its obligations under this Agreement and which by the ity to perform its obligationrform its o
exercise of due diligence such Party could note diligence such Party coulgence such Party reasonably have been expected to avoid
and which by the exercise of due diligence itby the exercise of due diligeby the exercise of due has been unable to overcome, and (3) such
event is not the direct or indirect result of not the direct or indirect resthe direct or indirethe fault or negligence of the Party seeking to
have its performance obligations excused thereby. ts performance obligations eformance obligat
Subject to the foregoing, events that could qualify asaForce MajeureSubjeSubject to
Eventinclude, but are not limited to the following:Eventntinclude, but are notinclude, but ar
acts of God, flooding, lightning, landslide, earthquake, fire,
drought, explosion, epidemic, quarantine, storm, hurricane, tornado, volcano, ddrough
othernatural disaster or unusual or extreme adverse weather-related events;othe
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
7
Exhibit 'A'
war (declared or undeclared), riot or similar civil disturbance,
acts of the public enemy (including acts of terrorism), sabotage, blockade,
insurrection, revolution, expropriation or confiscation; or
except as set forth in subpart (b)(vi) below, strikes, work
stoppage or other labor disputes (in which case the affected Party shall have no ha
obligation to settle the strike or labor dispute on terms it deems unreasonable). onable). e).
environmental and other contamination at or affecting the or affecting the fecting th
Project;
explosion, accident or epidemic;
accidents of navigation or breakdown or injury of vessels, akdown or injury of vessen or injury of
accidents to harbors, docks, canals or other assistances to or adjuncts of shipping stances to or adjuncts of shipstances to or adjuncts of sh
or navigation, or quarantine;
nuclear emergency, radioactive contamination or ionizing radioactive contamination active contam
radiation or the release of any hazardous waste or materials; ous waste or materials; us waste or materials;
air crash, shipwreck, train wrecks or other failures or delays of pwreck, train wrecks or othek, train
transportation;
vandalism beyond that which could alism beyond that which coubeyond that whicbe reasonably prevented by
Seller;
the discovery of Native American burial grounds not evidenced the discovery of Native Adiscovery of Nat
in Seller’s Phase I environmental assessment of the Site; hase I environmental assessmenvironmental a
the discovery of endangered species, as defined by Law; and the discovery of ehe discove
breakdown or failure of equipmenbreakbreakdown t as a result of a serial
manufacturer defect or flaw.manufacturer defect or flawfacturer defect o
AForce MajeureEventshall not be based on:AForce MaFor
Buyer’s inability economically to use or resell the Product
purchased hereunder;purchapurchased her
Seller’s ability to sell the Product at a price greater than the
price set forth in this Agreement;price
Seller’s inability to obtain Governmental Approvals or other
approvals of any type for the construction, operation, or maintenance of the
Project;
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
8
Exhibit 'A'
Seller’s inability to obtain sufficient labor, equipment,
materials, or other resources to build or operate the Project, except to the extent
Seller’s inability to obtain sufficient labor, equipment, materials, or other
resources is caused by aForce Majeure Event of the specific type described in any
of subsections (a)(i) through (a)(xi) above;
Seller’s failure to obtain financing or other funds, including s, includlud
funds authorized by a state or the federal government or agencies thereof, to ies thereof, toof,
supplement the payments made by Buyer pursuant to this Agreement; orment; oror
a strike, work stoppage or labor dispute limited only to any one imited only to ad only to any one ne
or moreof Seller or Seller’s Affiliates.
“Force Majeure Extension”has the meaning set forth in Section 4.2(b)(iii).Section 4.2(b)(iii)4.2(b)(iii).
“Gains” means with respect to any Party, an amount equal to the present value of the unt equal to the present valunt equal to the presen
economic benefit to it, if any (exclusive of Costs), resulting from the termination of this ), resulting from the terminasulting from th
Agreement for the remaining Delivery Term, determined in a Commercially Reasonable determined in a Commercianed in a Com
manner. Factors used in determining economicomic benefit may include, wmic benefit may inclu benefit may include, without limitation,
reference to information either available to itto it internally or supplied b internally or supplied by one or more third intern
parties, including, without limitation, quotations quotations (either firm or ations (eit(either firm or indicative) of relevant
rates, prices, yields, yield curves, volatilitiesolatilities, spreads or other rs, spreads or, spreads or other relevant market data in the
relevant markets, comparable transactionsransactions, forward price ctions, forward , forward price curves based on economic
analysis of the relevant markets, settlement priets, settlement prices for cots, settlement prices ces for comparable transactions at liquid
trading hubs (e.g., NYMEX), all of which sX), all of which should be caall of which shouhould be calculated for the remaining term of
this Agreement and include the value, if any, of Capacity Attributes, and Environmental lude the value, if any, of Cae value, if any,
Attributes.
“GEP Cure”has the meaning set forth in Section 3.21(b). as the meaning set forth in Smeaning set for
“GEP Damages”mages”ageshas the meaning set forth in Exhibit D. has the meanhas the meaning set
“GEP Failure”EP Failure”urmeans Seller’s failure to produce Delimeans Semeans Seller’s vered Energy in an amount equal
to or greater than the Guaranteed Energy Production amount for the applicable o or greater than the Gugreater than th
Performance Measurement Period. Performance Measuremenormance Measur
“Governmental Approvals”“Governmenta“Governmental Appmeans all authorizations, consents, approvals, waivers,
exceptions, variances, filings, permits, orders, exceptions, exceptions, varianlicenses, exemptions and declarations of or
with any Governmental Authority and shall include those siting and operating permits with anywith any Gove
and licenses, and any of the foregoing undeand licensesr any applicable environmental law, that are
required for the use and operation of the Project. rerequired
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
9
Exhibit 'A'
“Governmental Authority” means any federal, state, local or municipal government
body; any governmental, quasi-governmental, regulatory or administrative agency,
commission, body or other authority exercising or entitled to exercise any administrative,
executive, judicial, legislative, policy, regulatory or taxing authority or power; any court
or governmental tribunal; or any independent operator, regional transmission
organization or other regulatory body; in each case having jurisdiction over either Party,her P
the Project, the Site, Seller’s Interconnection Facilities, the Interconnection Provider’s n Providevid
Interconnection Facilities, or the Transmission Operator’s System.
“Governmental Charges”has the meaning set forth in Section 12.2.
“Guaranteed Commercial Operation Date”means December 31, 2020. 31, 2020.
“Guaranteed Energy Production”has the meaning set forth in Section 3.21(a). rth in Section h in Sect3.21(a)3.21(a).
“Guarantor” means an entity which, at the time it is to provide a Guaranty, (a) has a t is to provide a Guaranty, is to provide a Guar
Credit Rating from at least two Ratings Agencies equal to or greater than BBB- from ies equal to or greater thanqual to or gre
S&P, Baa3 from Moody’s, or BBB- from Fitch; and (b) is incorporated or organized in a h; and (b) is incorporated orb) is incorpor
jurisdiction of the United States and is in good standing in such jurisdiction. ood standing in such jurisdicd standing in such jur
“Guaranty”means aGuaranty substantially in the form of Exhibit E. ntially in the form of Exhibiin the form
“Initial Negotiation End Date”has the meaning set forth in Section 17.2(a).has the meaning set forth inhe meaning set fo
“Interconnection Agreement”ment”””” means the separate genera means the separ means the separate getion interconnection agreement
between Seller (or its Affiliate), the TranAffiliate), the Transmissioliate), the Transmsmission Operator and the Interconnection
Provider for interconnection of the Project to the Transmission Operator’s System as such nnection of the Project to theon of the Project
agreement may be amended from time to time. e amended from time to timed from tim
“Interconnection Provider”ection Provider”ction Provider”” means the Person that owns the portion of the Transmission mean means the
Operator’s System (including the interconnection facilities that are not Seller’s ’s System (including theSystem (including
Interconnection Facilities) at the Delivery Point. As of the Effective Date, the onnection Facilities) at thtion Facilities)
Interconnection Provider is LCRA. rconnection Provider is LCRction Provid
“Interconnection Provider’s Interconnection Facilities”“Intercterconnection Providonnection P means the interconnection
facilities, control and protective devices afacilities, contfacilities, control and nd metering facilities required to connect the
Project with the Transmission Operator’s Project with Project with the TSystem from, and on Buyer’s side of, the
Delivery Point. DeliveryDelivery Point.
“Interest Payment Date”“Interest Pmeans the last Business Day of each calendar month.
“““InterestInteRate” means the lower of (i) annual rate equal to the Prime Rate then in effect
plus two percent (2%) and (ii) the maximum interest permitted by Applicable Law.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
10
Exhibit 'A'
“LCRA”means Lower Colorado River Authority.
“Letterof Credit” means an irrevocable, transferable standby letter of credit,
substantially in the form of Exhibit F, issued by a U.S. commercial bank or a foreign
bank with a U.S. branch with such bank having a Credit Rating of at least A- from S&P rom
or A3 from Moody’s, and having assets of at least $10 Billion, in a form acceptable to the ptable to tto
Party in whose favor the letter of credit is issued.
“Losses” means with respect to any Party, an amount equal to the present value of the present value of the nt value of the
economic loss to it, if any (exclusive of Costs), resulting from a Terminated Transaction Terminated Transaction nated Transaction
for the remaining term of this Agreement, determined in a Commercially Reasonable Commercially Reasonable cially Reasonable
manner. Factors used in determining the loss of economic benefit may include, without benefit may include, withoufit may include, w
limitation, reference to information either available to it internally or supplied by one or internally or supplied by onnternally or supplied by
more third parties including without limitation, quotations (either firm or indicative) of tions (either firm or indicattions (either firm or indicat
relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market ies, spreads or other relevas, spreads or other r
data in the relevant markets, comparable transactions, forward price curves based on actions, forward price curvns, forward p
economic analysis of the relevant markets, settlement prices for comparable transactions ttlement prices for comparabprices for co
at liquid trading hubs (e.g. NYMEX), all of f which should be calculatedwhich should be calculated for the remaining which should be calcu
term of this Agreement and include the valuthe value, if any, of Capaalue, e, if any, of Capacity Attributes, and
EnvironmentalAttributes.
“Manager”has the meaning set forth in Section 17.2(a). t forth in Section in Section 17.2(a)17.2(.
“Metering System” means all meters, metering devices and related instruments used to s all meters, metering devic meters, metering
measure and record Energy and nergy and to determine the and to determineto determine the amount of such Energy that is being
made available or delivered by the Project aelivered by the Project and thd by the Projectnd the Wind Project at the Delivery Point.
“Moody’s” means eansMoody’s Investor Service, Inc. or any successor thereto, or in the Moody’s InvestoMoody’s Investor Ser
event that there is no such successor, a nahere is no such successor, a nere is no such successtionally recognized credit rating agency.
“MW”means a megawatt (or 1,000 kilowatts) of AC electric generating capacity. means a megawatt (or 1,00ns a megawatt (o
“MWh” “MWh” hmeans a megawatt hour of Energy. means means a megawatt ha mega
“““Net OutputNet OutputNet Output””” means Energy produced by the Project, less station use and less means
transformation and transmission losstransformationtransformation and es and other adjustments (e.g., Seller’s load other
than station use), if any. For purposes of calculating payment under this Agreement, Net than statithan station use),
Output shall be the amount of Energy measureOutput shall butputsd by the meters installed at the Delivery
Point. Point.
“Non“Non-Defaulting Party”has the meaning set forth in Section 7.2.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
11
Exhibit 'A'
“Notice” has the meaning set forth in Section 18.1.
“Operating Procedures”has the meaning set forth in Section 3.13.
“Party”or“Parties”has the meaning set forth in the first paragraph of this Agreement.
“Performance Assurance” means collateral provided by Seller to Buyer to secure r to secusec
Seller’s obligations hereunder and includes Project Development Security and Delivery y and Deliverylive
Term Security.
“Performance Measurement Period”has the meaning set forth in Section 3.21(a). Section on3.21(a)3.21(a)..
“Permitted Extensions” means extensions to the Guaranteed Commercial Operation teed Commercial OperatioCommercial Op
Date due to Transmission Delay, Permitting Delay, or Force Majeure Extension. rce Majeure Extension. e Majeure Extension.
“Permitting Delay” has the meaning set forth in Section 4.2(b)(ii). ctionon4.2(b)(ii))..
“Person” means an individual, partnership, corporation, business trust, joint stock , corporation, business truation, busine
company, trust, unincorporated association, jon, joint venture, governmenjoint venture, goverint venture, governmental entity, limited
liability company or any other entity of whatever nature. whatever nature. ver na
“Planned Outage” means the removal of the all or a portion of the Project from service oval of the all or a portion he all or a po
availability for inspection and/or general /or general overhaul of oneneral overhaul overhaul of one or more major equipment
groups. To qualify as a Planned Outage, the maintenance (a) must actually be conducted ned Outage, the maintenanced Outage, the m
during the Planned Outage, and in Sege, and in Seller’s sole discand in Seller’s soller’s sole discretion must be of the type that is
necessary to reliably maintain consistent wmaintain consistent with Pruin consistent witith Prudent Operating Practices the Project,
(b) cannot be reasonably conducted during nably conducted during conducted durinthe Project’sthe operations, and (c) causes the
generation level of the Project to be reduced of the Project to be reduced oject to be by at least ten percent (10%) of the Project
Capacity.
“Prime Rate” Rate”e”means meansmeans the interest rate (sometimes referred to as the “base rate”) for large the interethe interest rate
commercial loans to creditworthy entities ercial loans to creditworthy loans to creditwannounced from time to time by Citibank, N.A.
(New York), or its successor bank, or, if such rate is not announced, the rate published in ew York), or its successor ba), or its succ
The Wall Street Journal as the “Prime Rate” frThe Wall Street Journal as tWall Street Journaom time to time (or, if more than one rate
is published, the arithmetic average of such ratesis published, the arithmetublished, the arit), in either case determined as of the date
the obligation to pay interest arises, but the obligationthe obligation to payin no event more than the maximum rate
permitted by Applicable Law. permitted by Apermitted by Applic
“Product”“Product”Produchas the meaning set forth in Section 3.1.has
“Project” “P“Projecthas the meaning set forth in the Recitals and includes Seller’s proposed
electrical plant and equipment used to geelectrnerate electricity utilizing photovoltaic solar
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
12
Exhibit 'A'
power located at the Site, Seller’s Interconnection Facilities and any and all additions,
replacements or modifications. The Project is more particularly described in Exhibit B.
“Project Capacity” means the full generation capacity of the Project net of all Station
Service as measured at the Delivery Point, which will be 100 MW.
“Project Cure Period”has the meaning set forth in Section 4.3(a).
“Project Development Security”has the meaning set forth in Section 9.4(a)(i).4(a)(i).
“Project Investor” or “Project Investors” means any and all Persons or successors in ersons or successors in s or successors in
interest thereof (A) lending money, extending credit or providing loan guarantees roviding loan guarantees loan guarantees
(whether directly to Seller or to an Affiliate of Seller) as follows: (i) for the construction, ows: (i) for the construction(i) for the constru
interim or permanent financing or refinancing of the Project; (ii) for working capital or oject; (ii) for working capitaect; (ii) for working cap
other ordinary business requirements of the Project (including the maintenance, repair, including the maintenance, including the maintenance,
replacement or improvement of the Project); (iii) for any development financing, bridge or any development financinany development fin
financing, credit support, credit enhancement or interest rate protection in connection r interest rate protection inerest rate prot
with the Project; (iv) for any capital improvement or replacement or replacement relatedreplacement ment related to the Project;
or (v) for the purchase of the Project and and the related rights frond the related rightthe related rights from Seller; or (B)
participating (directly or indirectly) as ans an equity investor (inclu equity investor (including a Tax Equity equity
Investor) in the Project; or (C) any lessor undeessor under a lease finance under a lear a lease finance arrangement relating to
the Project.
“Prudent Operating Practices”tices”ces” means the practices, methods and standards of means the practicemeans the
professional care, skill and diligence engaged in or approved by a significant portion of d diligence engaged in or aligence engaged i
the electric generation industry for solar facilitndustry for solar facilities ory for solar faciliies of similar size, type, and design, that, in
the exercise of reasonable judgment, in lighonable judgment, in light of judgment, in lit of the facts known at the time, would have
been expected to accomplish results consistenaccomplish results consisteish resultst with Applicable Law, reliability, safety,
environmental protection and standards of econoprotection and standards ofection and standamy and expedition.Prudent Operating
Practices is not intended to be limited tonot intended to be limitednot intended to be li the optimum practice, method, or act to the
exclusion of all others, but rather to be n of all others, but rather tof all others, but ratacceptable practices, methods, or acts generally
accepted in the industry. ted in the industry. the industry.
“Qualified Scheduling EntityQualified Scheduling Entlified Scheduling” or “QSE” has the meaning set forth in the ERCOT
Protocols and means the entity that provides thProtocols and means the tocols and meane Project scheduling, bidding services and
financial settlement with ERCOT. financial settlefinancial settlement wi
“Ratings Agency”“Ratings“Ratings Agency means either S&P, Moody’s, or Fitch.
“Receiving Party”“Receiving has the meaning set forth in Section 13.1.
“Referral Date”“Refehas the meaning set forth in Section 17.2(a).
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
13
Exhibit 'A'
“Replacement Price” means the price at which Buyer, acting in a Commercially
Reasonable manner, purchases a replacement for the Product if it is not delivered by
Seller, plus (i) costs reasonably incurred by Buyer in purchasing such substitute Product
and (ii) additional transmission charges, if any, reasonably incurred by Buyer to the
Delivery Point or, at Buyer’s option, the market price at the Delivery Point for such
Product not delivered as determined by Buyer in a Commercially Reasonable manner; ma
provided, however, in no event shall such price include any penalties, transmission costs, ission cosco
ratcheted demand or similar charges, nor shall Buyer be required to utilize or change its e or change itsge
utilization of its owned or controlled assets or market positions to minimize Seller’s minimize Seller’s ze Seller’
liability.
“RTSPP” or “Real-Time Settlement Price Point” means, for fifteen (15) minute for fifteen (15) minute een (15) minute
settlement period, the real-time settlement price (as then-applicable to the Delivery Point) licable to the Delivery Pointe to the Delivery
for Net Output, expressed in dollars per MWh, at the Delivery Point for such settlement livery Point for such settlemvery Point for such sett
period, as determined by ERCOT and published on the ERCOT website at ed on the ERCOT websd on the ERCOT web
www.ercot.com in accordance with the then applicable ERCOT Protocols. The ERCOT able ERCOT Protocols. Thle ERCOT Protocols
Day Ahead Market and RTSPP location/name for the Project settlement point is me for the Project settlemr the Project
CAPRIDG4_CR4.
“S&P” means Standard & Poor’s or any successor theretsuccessor thereto, or in the essor to, or in the event that there is no
such successor, a nationally recognized credit rating agency. ed credit rating agency. it rating ag
“SCADA” means Supervisory Control and Data AcquControl and Data Acqul and Data Acquisition. isition
“SEC”means the U.S. Securities and Exchange Commission. curities and Exchange Commties and Exchange
“Seller”has the meaning set forth in the fining set forth in the first paret forth in the frst paragraph of this Agreement.
“Seller Curtailmentment” means any curtailment of ” means any curt” means any curtailmenNet Output resulting from (a) a failure of
Seller’s Interconnectrconnectconnection Facilities that causes the Projion Facilities ion Facilities that cect to be disconnected, suspended
or interrupted, in whole or in part, or (b) Seupted, in whole or in part, oed, in whole or in ller’s default under this Agreement or the
Interconnection Agreement. onnection Agreement. tion Agreement.
“Seller Excuses”Seller Excuses”Excusehas the meaning set forth in Section 3.5(a). has thhas the me
“Seller’s Interconnection Facilities”“SSeller’s Interconnectller’s Inter means the interconnection facilities, control and
protective devices and metering facilities reprotective devprotective devices quired to connect the Project with the
Transmission Operator’s Systemup to, and on Seller’s side of, the Delivery Point.TransmissioTransmission Op
“Seller’s Replacement Costs”“Seller’s Rhas the meaning set forth in Section 3.6(a).
“Seller’s Ultimate Parent Company”“SSellemeans NextEra Energy, Inc.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
14
Exhibit 'A'
“Settlement Amount” means, with respect to the Non-Defaulting Party, the Losses or
Gains, and Costs, expressed in U.S. Dollars, which such Party incurs as a result of the
liquidation of a Terminated Transaction.
“Shared Contract Year”has the meaning set forth in Section 3.21(d).
“Site”means the real property on which the Project is located.
“Station Service” means the electric energy produced by the Project that is used within hat is ususededdd within withi
theProject to power the lights, motors, control systems and other auxiliary electrical r auxiliary electrical iliary electrical
loads that are necessary for operation of the Project.
“System Curtailment” means any curtailment of delivery of Net Output as the result of f Net Output as the result oOutput as the re
any of the following: (i) an Emergency, (ii) an action taken by the Interconnection n taken by the Interconnectaken by the Interconn
Provider or the Transmission Operator to decrease the production of the Project’s Net he production of the Projecthe production of the Projec
Output to resolve transmission constraints, and (iii) any other order or directive of the i) any other order or directiany other order or d
Interconnection Provider or the Transmission Operator, which order or directive may be perator, which order or direcor, which orde
directly communicated to Seller by the Interconnection Provider or the Transmission rconnection Provider or thion Provider
Operator, or indirectly to Seller by Buyer.
“System Curtailment Order” means the instruction from ERCOT or the Transmission the instruction from ERCOstruction
Operator to a Party or the QSE to reduce genereduce generation from the neration froration from the Project by the amount, and
for the period of time set forth in such order, due to a System Curtailment. n such order, due to a Systemh order, due to a S
“Tax Attributes” means (i) investment tax credits (ii) investment tax credits (innvestment tax crencluding any grants or payments in
lieu thereof) and any other tax deductions other tax deductions or benetax deductions oror benefits under federal, state or other Law
available as a result of the ownership and opeof the ownership and operatownership and ration of the Project or the output generated
by the Project (including, without limitation, ncluding, without limitationwithout ltax credits, payments in lieu thereof and
accelerated and/or bonus depreciation); and d/or bonus depreciation); abonus depreciati(ii) present or future (whether known or
unknown) cash payments, or outright grants of money relating in any way to the Project. ash payments, or outright grash payments, or outri
“Tax Equity Investor”Equity Investor”ty Investor””” means an investor that has acquire mea means and an equity interest in Seller
pursuant to a financing structure that assigns susuant to a financing structura financingch investor rights, title and benefits to the
Tax Attributes of Seller. Tax Attributes of Seller. ttributes of Selle
“Term” “Term” “Term” has the meaning set forth in Section 2.1.has thhas the meanin
“Terminated Transaction”“Term“Terminated Tra means the termination of this Agreement in accordance with
Section 7.2of this Agreement. Section ection7.2of
“Termination Payment”“T“Termin has the meaning set forth in Section 7.3.
“Transfer Taxes” has the meaning set forth in Section 3.3(b).
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
15
Exhibit 'A'
“Transmission Delay”has the meaning set forth in Section 4.2(b)(i).
“Transmission Operator” means ERCOT or any successor independent system operator,
regional transmission operator or other transmission operator from time to time having
authority to control the transmission Balancing Authority into which the Project is Proj
interconnected.
“Transmission Operator’s System” means the contiguously interconnected electric onnected electric ed electri
transmission facilities over which the Transmission Operator has rights to manage the ights to manage the to manage the
bulk transmission of capacity and energy from the Delivery Point.
“TRE” means the Texas Reliability Entity, Inc., and its successor.essor.
“Wind Project” has the meaning set forth in Section 5.1...
1.2Interpretation.
The following rules of construction shall be followed when interpreting this Agreement: ed when interpreting this Agd when interpreting th
the gender (or lack of gender) of all words used in this Agreement of gender) of all words under) of
includes the masculine, feminine, and neuter; nd neuter; ;
words used or defined in the singular include the plural and vice versa; or defined in the singular incned in the singul
references to Articles and Sections reces to Articles and SectionsArticles and Secfer to Articles and Sections of this
Agreement;
references to Annexes, Exhibits and Schedules refer to the Annexes,references to Annexes, Exes to Anne
Exhibits and Schedules attached to this AgSchedules attached to this Adules attached to reement, each of which is made a part hereof
for all purposes; poses;oses
references to Applicable Laws refer to suchApplicableLaws as they referencesreferences to A
may be amended from time to time, and reay be amended from time mended fromferences to particular provisions of an
Applicable Law include any corresponding provisions of any succeedingApplicableLaw Applicable icable Law include anyLaw includ
and any rules and regulations promulgated thereunder; and any rules and regulatany rules and re
terms defined in this Agreement artee used throughout this Agreement
and in any Annexes, Exhibits and Schedules hereto as so defined; and in anand in any Annex
references to money refer to legal currency of the United States of
America;AAmerica
the words “includes” or “including” shall mean “including without
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
16
Exhibit 'A'
limitation;”
the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms
in this Agreement shall refer to this Agreement as a whole and not any particular Article
or Section in which such words appear, unless otherwise specified;
all references to a particular entity shall include a reference to such nce to ss
entity’s successors and permitted assigns but, if applicable, only if such successors and uccessors andrs a
assigns are permitted by this Agreement;
references to any agreement, document or instrument shall mean a trument shall mean a nt shall mean a
reference to such agreement, document or instrument as the same may be amended, same may be amended, may be amended,
modified, supplemented or replaced from time to time;
the word “or” will have the inclusive meaning represented by the ve meaning represented bve meaning represented
phrase “and/or”, unless the context clearly indicates thatan exclusive meaning is ates thattes thatan exclusive meaexclusiv
intended.
the words “shall” and “will” mean “mill” mean “must”, and shalill” mean “must”, andust”, and shall and will have
equal force and effect and express an obligation; and gation; and on; a
the words “writing,” “written” and comparable terms refer to printing, ,” “written” and comparabletten” and c
typing, and other means of reproducing in a visible form.ucing in a visible form.in a visible form
ARTICLE 2 ARTICLE 2ARTICLE 2
TERM TERM TERM
2.1Term.
The “Term” of this Agreement shall commence on the Agreement shall commenceAgreement shall com Effective Date and continue until the date
that is fifteen (15) years following the Commer5) years following the Commyears following thecial Operation Date, unless sooner terminated in
accordance with the terms hereof. The Term may ith the terms hereof. The Te terms hereof. Tbe renewed or extended by mutual consent of
the Parties, upon terms and conditions and for a , upon terms and conditionserms and condprice upon which the Parties mutually agree in
connection with such extension or renewal. on with such extension or reth such extensio
ARTICLE 3
OBLIGATIONS AND DELIVERIES
3.13.13.1Product.Product.Product.
The “““ProductProProduct”” to be delivered and soldt by Seller and received and purchased by Buyer under
this Agreement is Delivered Energy, Capacity Attributes, Environmental Attributes (consistent greeme
with the requirements described in PUCT Substantive Rule §25.173(e)), and other ancillary
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
17
Exhibit 'A'
products, services or attributes similar to the foregoing which are or can be produced by or
associated with the Delivered Energy in accordance with the terms hereof.
3.2Purchase and Sale.
Unless specifically excused by the terms of this Agreement during the Delivery Term, Seller m,
shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to or causeus
be received, the Product at the Delivery Point, and Buyer shall pay Seller for the Product in the Product inuct
accordance with the terms hereof.
3.3Contract Price.
Buyershall pay Seller for each MWh of the Productduring the of the eProductProductduring theduring the
Delivery Term, at the applicable rate set forth in Exhibit A (as applicable during the it A (as applicablas applicable during e du
respective periods, the “Contract Price”).
In addition to the amounts otherwise payable by Buyerin accordance rwise payable by se payable by Buyerin
with this Section 3.3, Buyer shall pay and shall indemnify, to the extent allowable by all indemnify, to the extentemnify, to the
Applicable Law, and hold Seller harmless from and against all sales, use excise, ad from and against all salesfrom and against all
valorem, transfer and other similar taxes (“(Transfer TaxesTransfer Taxesrans”), but excluding in all events ”)b”), but exc
taxes based on or measured by net income, that are imposed by any taxing authority ncome, that are imposed bye, that ar
arising out of or with respect to the purchae purchase or sale of Produse or sale of Product (regardless of whether se or sale o
such Transfer Taxes are imposed on Buyer or Sellon Buyer or Seller), togetheuyer or Seller), toer), together with any interest, penalties
or additions to tax payable with respect to such Transfer Taxes. h respect to such Transfer Taect to such Trans
3.4Capacity Attributes.
In the event the PUCT or ERCOT establishes a capacity market, as that term is commonly r ERCOT establishes a capOT establishes
understood, requiring Buyer to uyer to show resources in reserve to satisfy Buyer’s load requirements, show resources in rhow resour
and to the extent the Capacity Attributes of the Capacity Attributes of the Pcity Attributes ofProject would qualify as such a resource, Buyer
shall be entitled, to the extent allowed by to the extent allowed by Ao the extent allowApplicable Law, to claim for such purposes the
Capacity Attributes generated by the Project. Atutes generated by the Projegenerated by the Buyer’s request and at Buyer’s sole cost and
expense, the Parties shall execute such documene Parties shall execute sucies shall executts and instruments as may be reasonably
required to effectuate the recognition and transfer of o effectuate the recognitionate the recosuch Capacity Attributes, if any, to Buyer.
For the avoidance of doubt, the foregoing shall not e avoidance of doubt, the fordance of doubt, tgive Buyer the right to direct the operation or
maintenance of the Project, or to modify the desintenance of the Project, or te of the Projecgn of the Project or any component thereof, for
purposes of affecting the production, quantity, qualiturposes of affecting the prourposes of affecting y, nature or value of capacity in respect of
the Project. the Projecthe Project.
3.53.53.5Performance Excuses. Performance
The performance of Seller to deliver the Energyshall be excused only
(i)during periods of Force Majeure, (ii)by Buyeri)du’s failure to perform, (iii)during Buyer
Curtailments and System Curtailments, and (iv) during Planned Outages (“Seller
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
18
Exhibit 'A'
Excuses”).
The performance of Buyerto receive and pay for the Productshall be
excused only (i)during periods of Force Majeure, (ii)by Seller’s failure to perform, or
(iii)during System Curtailments(“Buyer Excuses”).
3.6Buyer’s Failure to Accept Delivery of Product.
If Buyerfails to take all or part of the Productand such failure is not ch failure is not lure is n
excused due to BuyerExcuses, then Buyershall pay Seller, on the date payment would ate payment would ayment would
otherwise be due in respect of the monthin which the failure occurred,an amount equal rred,an amount an amounequal qual
to the Contract Pricemultiplied by the amount of Product that Buyer failed to take during uyer failed to take during iled to take during
such month;provided,however, in no event shall Buyer be required to pay Seller an e required to pay Seller anuired to pay Seller an
amount greater than the Contract Price (“Seller’s Replacement Costsment CostsCost”).”).)
Seller shall include in a monthly invoice delivered to Buyerpursuant to voice delivered to oice delivered to BuyerBuypu
Section 8.1 the amounts owed by Buyer pursuant to Section 3.6(a) and a description, in to Section Se3.6(a)6(a) and a desd
reasonable detail, of the calculation of Seller’s Replacement CostsReplacement Costsement Costs...
3.7Seller’s Failure to Deliver Product.
If Seller fails to deliver all or deliver all or part of the all or partpart of the Productpursuant to the P
Agreement, and such failure is not due to Seller Excuses, tht due to Seller Excuses, thento Seller Excuseen Seller shall pay Buyer, on
the date payment would otherwise be due in respect of the monthin which the failure wise be due in respect of thbe due in respect
occurred, an amount for such deficiency equal h deficiency equal to the podeficiency equal to the positive difference, if any, obtained
by subtracting the Contract Price from the Replacement Price (“act Price from the Replacemrice from the ReBuyer’s Replacement
Costs”).
No later than the tenth (10th) Day of the month following any month in No later than the tenth (10ththan the te
which Seller owes Buyerwes BuyerBuyer’s Replacement Costs’s Replace’s Replacement ,Buyershall deliver to Seller an invoice
showing the amounts owed by Seller and a e amounts owed by Sellere amounts owed by description, in reasonable detail, of the
calculation ofBuyeron offBuyerBuyer’s Replacement Costs’s Replace’s Replacement . Seller shall credit Buyer, in an amount equal
to any undisputed amounts set forth in the invoice received from Buyer, against the y undisputed amounts set fisputed amounts
amounts owed by Buyerto Seller, providedthat ounts owed by wedBuyerBuyto Seif the amount of such credit is greater
than the amount payable by Buyerfor such mhan the heamount payable by amount payabonth, the excess portion of such credit shall
be applied by Seller to rebe applied by Seller to rapplied by Selleduce the amount payable by Buyerhereunder in subsequent
month(s).month(s).month(s).
3.833.8Offsets, Allowances and Environmental Attributes. Offsets, Offsets, Allowan
Buyerisentitled to all Environmental Attributesand Capacity
Attributes resulting from the generation of AAttributeall or part of the Product that is actually
purchased by Buyerpursuant to this Agreement. Buyershall be entitled to any purch
Environmental Attributesor Capacity Attributes resulting from all or part of the Product
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
19
Exhibit 'A'
thatBuyer, for any reason, did not accept pursuant to Section 3.6.
Seller shall be entitled to all (i) federal and state production tax credits,
investment tax credits and any other tax credits which are or will be generated by the
Project, (ii) any cash payments, grants under Section 1603 of the American Recovery and
Reinvestment Tax Act of 2009 or outright grants of money relating in any way to the ay
Project or Environmental Attributes, and (iii) any Environmental Attributesthat the esthatat
Buyeris not entitled to pursuant to the provisions of Section 3.8(a). Buyer acknowledges acknowledgesedg
that Seller has the right to sell any Environmental Attributes to whhich it is entitled ich it is entitled is entitle
pursuant to this Section 3.8(b) to any Person other than Buyer at any rate and upon any y rate and upon any and upon any
terms and conditions that Seller may determine in its sole discretion without liability to ion without liability to without liability to
Buyer hereunder. Buyer shall have no claim, right or interest in such Environmental st in such Environmental ch Environmental
Attributes or in any amount that Seller realized from the sale of such Environmental sale of such Environmentaof such Environ
Attributes.
During the Term, or applicable portion rtion thereof, Seller shall deion thereof, Seller shthereof, Seller shall deliver and
transfer, and Buyer shall receive, Environmental Attributes and Capacity Attributes al Attributes Attand Capacityand
described in Sections3.1and 3.4, respectively. Seller shall transfer all Environmental y.Seller shall transfer er shall transall
Attributes in accordance with the ERCOT protocols, including its regulations and TTprotocolsprotocols, including its, includin
procedures, for recording transfers.Seller and Buyer shall each cooperate fully and assist r and Buyer shall each coopd Buy
each other in complying with any and all reguall regulatory obligations regulatory olatory obligations relating to recording and
tracking of the transfer. Seller and Buyer d Buyer shall cooperate in shall cooperate in good faith and undertake shall coope
reasonable efforts to consummate recognition te recognition of the transfcognition of the of the transfer in the applicable ERCOT
Tracking System; provided, however, that Buyer acowever, that Buyer acknowlwever, that Buyer ackknowledges that such transfer will not
be recognized unless and until Buyer confirmuntil Buyer confirms suchtil Buyer confirms such transfer in accordance with the
applicable requirements of the ERCOT Trackin of the ERCOT Tracking e ERCOT Trackg System. Upon a notification by the
administrator or operator of the ERCOT Tracking System that the transfer of the erator of the ERCOT Tracof the ERCO
Environmental Attributes cannot be recorded due tributescannotcabe recordedbe recto a deficiency in the transaction or
documentation, the Parties shall promptly confthe Parties shall promptly arties shall proer and cooperate in taking all reasonable
actions necessary to cure any defects in the ssary to cure any defects in ssary to cure any defecproposed transfer, so that the transfer can be
recorded at the earliest possible date.at the earliethe earliest possible date.t possible
3.9Station Service.on Service.vic
If Buyer or any of its Affiliates provides retail electryer or any of its Affiliates pany of its Affiliic service in the service territory in which
the Project is located, then if requested by Seller, Buyer or such Affiliate shall provide Station Project is located, then if rProject is located,
Service to the ProjectService to the ProjeService to the Projectct(including Seller’s Interconnection Faci(includlities) as requested by Seller during
construction and operation of the Project at the ratesconstruction and opconstruction and operatio and on the terms set forth in the applicable
tariff(s) on a non-discriminatory basis with other commercial customers.tariff(s) on a nontariff(s) on a non-discr
3.1000Transmission. TTransmis
Seller shall be responsible for presenting to and receiving Transmission
Operator approval of the Projectinterconnection requirements and transmission facilities
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
20
Exhibit 'A'
so that Seller can perform its Energy deliveries hereunder in accordance with such
Transmission Operator’s requirements.
In the event that the Transmission Operatoror any other properly
authorized Person exercising control over the Interconnection Provider’s Interconnection
Facilities or the Transmission Operator’s Systemtakes any action or orders Seller or Sel
Buyerto take any action that affects Buyer’s ability to take delivery of Energy hereunder, y hereundun
Buyershall use its best efforts (at its own cost and expense) to mitigate the adverse te the adversedver
effects of such action(s) on Buyer’s ability to perform its obligations hereunder, ations hereunder, hereunder
including, without limitation, redispatching its generation resources, other than the ces, other than the other than the
Project.
3.11Scheduling.
The Parties shall comply with all ERCOT Protocols,associated ERCOT ProtocolsERCOT Protocol,assoasso
operation standards and guidelines, and Operating Procedures.ocedurescedu.
Promptly following the Effective Date, Buyer and Seller shall take all tive Date, Buyer and Sellerate, Buyer an
actions, and execute and deliver all documents nets necessary, to authorize or ts necessary, to authoricessary, to authorize or designate Seller,
or Seller’sdesignated QSE, as the Project’s ct’sQualified Scheduling Entity. Sellershall Qualified ScheduQualified Scheduling E
cause its designated QSE to provide, and Buyer shall accept, nd Buyer shall accept, yer shallat no cost to Buyer, Seller’s at no
Qualified Scheduling Entity services for the Project. The ces for the Project. Thethe ProjecSeller’s QSE shall be
responsible for scheduling the Project CaparojectCapacity and ProducCapacity and Pcity and Product and settling withERCOT
regarding the Net Output. Seller shller shall all be responsible for and cause the all be responsible for be responsiblSeller’s QSE to
perform the Qualified Scheduling Entity serviduling Entity services in acling Entity servicces in accordance with ERCOT Protocols,
this Agreement and Applicable Law. licable Law. Law.
TheheSeller’s Seller’s lerQSE will be obligated by the ERCOT Protocols to QSE will be SE wil
communicate orders, instructions, rders, instructions, or othetructions,or other directives to Sellerand Buyer’s QSE,
including such that may result in the inabh that may result in the int may result in ility or diminished ability to generate Net
Output. TheTheheSeller’s Seller’s er’QSE shall submit energy schedules, resource plans, and energy QSE shQSE shall subm
offer curves in accordance withrves in accordance with thein accordance wi the requirements of ERCOT Protocols, this Agreement
and Applicable Law. Applicable Law. able Law.
Seller’s QSE will transfer SelleSeller’s QProductand/or applicable components
thereofthereofeofto Buyer’s QSE utilizing Energy Trades as defined ito Buyer’s to Buyer’s QSE n ERCOT Protocol 4.4.2or
its successor.The fifteen (15)-its successorits successor..The fiftminute interval trade volumes will be based on ERCOT’s
revenue meter settlement data for the relevant revenue meterevenue meter settflow date. The Energy Trades will be
submitted prior to ERCOT’s energy trade deadline on the day followsubmittedsubmitted prior ing the flow date as
mutually agreed upon with the Buyerin the Operating Procedures.mutually agrell
Seller’s QSE will transfer Product and/or applicable components
thereof hereto Buyer’s QSE utilizing Capacity Trades as defined in ERCOT Protocol 4.4.1or
its successor.Thehourly trade volumes will be based on ERCOT’s most recent forecast
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
21
Exhibit 'A'
of the projects MW output, and extended at least through Hour Ending 24 of the
following day. The Capacity Trades will be executed on an hourly basis, or as mutually
agreed upon with the Buyer.
The Seller shall, or cause the Seller’s QSE, as applicable,totransmit to
Buyer, the followinginformation that shall be further defined in the Operating Ope
Proceduresand mutually agreed upon by the Parties:
timely transmit relevant non-ICCP settlement data and notices data and notices and notice
to ERCOT from the Project;
settlement and billing data that has been reviewed and truedbeen reviewed viewand trueand truedd
up with ERCOT settlement data;
forward payments received fromfrom ERCOT for the benefrom ERCOT for the ben ERCOT for the benefit of
Buyer that are not due to Seller pursuant to this Agreement, including any nt to this Agrt to this Agreementeement, includ,
generator revenue benefits such as the Operating Reserve Demand Curve he Operating Reserve DemOperating Reserve
“ORDC”and/or Congestion Revenue Rights ue Rights Auction Revenueghts Auction RAuction Revenue Distributions
(CARD);
provide notice of all resource outages, required outage tice of all resource outagof all
scheduling information, authorizations and corresponding updates to Buyer;authorizations and corresponzations and
all required meter data, telemetry,required meter data, telemeed meter data, t and settlement data, via
ICCP SCADA data,toatata,,toBuyer’s Buyer’s Buyer’s designee and ERCOT,according to ERCOT desdesignee an
Protocols,associated operating guides, and the Operating Procedures;sociated operating guidesed operating guid, an
provideall information requestedby Buyer providprovideall informaall inor Buyer’s
designee so that Buyermay reviewnee so that thaBuyeruyemay scheduling and billing/settlement
activities of Seller as they apply toivities of Seller s of Seller as they applas the Buyer obligations under this Agreement;
install, or cause to be installed, all control and communication instainstall, or
equipment to enable the automatic contequipment to enequipment to enable throl of the output of the Project by the
QSE;QQSE;
provide to Buyer next hour and next day output forecasts, at
least by 0600 hours CPT 24 hours in advalealeast by 06nce for the next day and for up to
seven days; andseseven da
shall install andtelemeter to ERCOT the site-specific
meteorological information that ERCOT requires in accordance with ERCOT
Protocols.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
22
Exhibit 'A'
3.12Sales for Resale.
All Product delivered to Buyer hereunder shall be sales for resale, with Buyer reselling such
Product for use in satisfying its native load requirements or that of other ERCOT market
participants. Buyer shall provide Seller with documentation reasonably requested by Seller for
regulatory or tax purposes to evidence that the deliveries of Product hereunder are sales forsale
resale.
3.13Operating Procedures.
Seller and Buyer shall use Commercially Reasonable Efforts to develop written operating elop written operating written operating
procedures for the Project (“Operating Procedures”)consistent with the criteria set forth inh the criteria set forth riteria set foinin
Exhibit J. These Operating Procedures shall be in place no later than twelve (12) months prior to n twelve (12) months prior tove (12) months p
the Commercial Operation Date. Such Operating Procedures shall be in accordance with s shall be in accordance wbe in accordanc
ERCOT Protocols, associated operating guides and Prudent Operating Practices under which the perating Practices under whiperating Practices under wh
Parties will perform their respective obligations under this Agreement.Upon written mutual s Agreement.Agreement.Upon writteUpon
agreement, Seller and Buyer may update the Operating Procedures without amendment to this Procedures without amendcedures withou
Agreement. Any disputes with respect to the Operating Procedures shall be resolved in perating Procedures shall bProcedures
accordance with the terms set forth in ARTICLE 17..
3.14Standards of Care.
Seller shall comply with all applicable requirements of Applicable Law, mply with all applicable requwith all applicable
ERCOT, TREandNERC relating to the Projecting to the Project (includinthe Project (inct (including those related to construction,
ownership and/or operation of the Project). of the Project).the Project).
Each Party shall perform all geneh Party shall perform all gty shall perforration, scheduling and transmission
services in compliance with all applicable ance with all applicable opeith all applicaboperating policies, criteria, rules, guidelines,
tariffs and protocols of ERCOTand Prudent OperatingPractices.cols of ERCOTCOanddPrudentP
Seller agrees to abide by all (i) NERC, TREandERCOTreliability Seller agreesSeller agrees to abid
requirements, including all such reliability requirementsfor generator owners and ments, including all such , including all
generator operators,and (ii) all applicable rerator operators,perators,and (ii) aand (iill aquirements regarding interconnection of the
Project, including the requirements of thoject, including the requiremluding the ree interconnected Transmission Operator.
3.15Curtailment. Curtailment. tailment.
Except as set forth in thisSection 3.15, Seller shall not curtail or
interrupt deliveries of Net Output from the interrupt deliverrupProject as required by this Agreement for
economic reasons of any type whatsoever; provided economicSeller’s obligation to generate,
deliver and sell to Buyer the dedeliverNet Output shall be excused during Seller Excuse Hours.
Buyer shall have no obligation to purchase Buyethe Net Output to the extent of a Seller
Curtailment.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
23
Exhibit 'A'
Seller shall reduce generation from the Project as required pursuant to a
Buyer Curtailment Order, provided thatBuyer shall pay Seller the Contract Price for
Deemed Delivered Energy associated with a Buyer Curtailment Period. Buyer shall
notify Seller, by telephonic communication or other method as may be set forth inthe
Operating Procedures, of a Buyer Curtailment Order,but in no event later than thirty (30)
minutes prior to the effectiveness of such Buyer Curtailment Order.In all cases all
involving a Buyer Curtailment, Seller shall reduce the Net Output delivered bySeller to bySellerlle
Buyer at the Delivery Pointto the level stated by Buyer. Except for aBuyer Curtailment,er Curtailmentmen,
in no event will Buyer curtail or interrupt deliveries of Net Output from the Project as om the Project as Project a
required by this Agreement for economic reasons of any type whatsoever. During any tsoever. During any er. During any
such period where Buyer fails to take the Net Output,Buyer shall have the right to make have the right the right to make to make
available, for sale,for resale or any other purpose, any rights and commercial benefits and commercial benefits mmercial benefits
associated with Product,including Environmental Attributes,Capacity Attributes,and es,Capacity Attributes,apacity Attributean
ancillary services,to the extentpermitted under Applicable Law or ERCOT Protocols.e Law or ERCOT ProtocolsLaw or ERCOT Protoc
Seller shall at all times during the Term comply with the directives of Term comply with the direTerm comply with th
the Transmission Operator and the Interconnection Provider given pursuantto the ection Provider given pursn Provider gi
Interconnection Agreement. Seller will notify Buyer, as soon as reasonably practicable, y Buyer, as soon as reasonabas soon as re
but in no event later than thirty (30)minutes, by telephonic communication or other nutes, by telephonic commuutes, by telephonic co
methodas may be set forth in the Operatinting Proceduresg Procedures, of a System Curtailment Order,Proced, of a System
upon receipt of such direction by Seller (or Seller’s agent) as the market participant eller (or Seller’s agent) as or Seller’
registered by Transmission Operator for the Project. In all cases involving a System tor for the Project. he Project. In all
Curtailment, Seller shall reduce the Net Outthe Net Output delivered byNet Output deliveput delivered by Seller toBuyer and any co-
offtaker, if applicable, at the Delivery Point on a non-discriminatory, pro-rata basis to the Delivery Point on a nonelivery Point on -disc
level stated by the Transmission Operator, mission Operator, the Intersion Operator, ththe Interconnection Provider or Buyer, as
applicable. Buyer shall have no obligation to purchase theNet Output to the extent of a l have no obligation to purchno obligation to
SystemCurtailment.
If Seller fails to comply with the If Seller fails to comply wSeller fails to cocurtailment directives and instructions
set forth in Section 3.15(c) and Section 3.15(d), Section n3.15(c)3.15(c) and anddd SectionSeSeller shall be liable to Buyer for any
penalties or fines imposed on Buyer by anor fines imposed on Buyefines imposed ony Governmental Authority and any actual
direct damages suffered by Buyer as a result damages suffered by Buyer ages suffered by Bof Seller’s failure to comply, reduced by any
amount Buyer is able to realize for the sale ofount Buyer is able to realizeyer is able to r any Net Output delivered in violation of
the Buyer Curtailment Order or the Systemhe Buyer Curtailment Oruyer Curtailmen Curtailment Order, as applicable.
Notwithstanding the foregoing, Seller’s failure to comply with a Notwithstanding the foregwithstanding the Buyer Curtailment Order
or System Curtailment Order or System Curor System Curtailmentshall not be a Seller Event of Default; provided, Seller’s
failure to reimburse Buyer for any such fines failure to reimfailure to reimburse or penalties actually incurred by Buyer as a
result of Seller’s failure to comply shall result of Seresult of Seller’s be considered a default under this Agreement
governed by Section 7.1(a)(i). governedgoverned by Se
Upon Buyer’s reasonable request, Seller shall promptly provide to
Buyer, or permit Buyer to audit and exBBuyer,amine during normal business hours, any
additional and supporting documentation, includidng the Project’s operating data and
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
24
Exhibit 'A'
SCADA data necessary for Buyer to audit and verify any matters set forth in Section
3.15.
3.16Outage Notification.
Seller shall schedule Planned Outages for the Project in accordance cor
withPrudent OperatingPractices and with the prior written consent of Buyer, which uyer, whwh
consent maynot be unreasonably withheld,conditionedor delayed. The Parties The PartiePart
acknowledge that in all circumstances, Prudent OperatingPractices shall dictate when all dictate when ctate whe
Planned Outages should occur. Seller shall notify Buyer of its proposed Planned Outage sed Planned Outage lanned Outage
schedule for the Project for the following calendar year by submitting a written Planned tting a written Planned a written Planned
Outage schedule nolater than October 1stofthe year prior to each year of the Delivery each year of ar ofthe Delivery Delivery
Term. The Planned Outage schedule is subject to Buyer’s approval, which approval may proval, which approval mayal, which approva
not be unreasonably withheld, conditionedor delayed.Buyer shall promptly respond Buyer shall promptly resposhall promptly r
with its approval or with reasonable modifications to the Planned Outage schedule and the Planned Outage scheduthe Planned Outage schedu
Seller shall use its best efforts in accordance with Prudent OperatingPractices to ithhPrudent OperatingPrudent OperatingPra
accommodate Buyer’s requested modifications. Seller shall contact Buyer with any Seller shall contact Buyeller shall con
requested changes tothe Planned Outage scheduldule if Seller believes the Pe if Seller believes Seller believethe Project must be
shut down to conduct maintenance that cannot cannot be delayed until theannot be delayed untbe delayed until the next scheduled
Planned Outage consistent with Prudent OperatOperatingratingingPractices. Seller shall not change its Practices. Seller
Planned Outage schedule without Buyer’s approval, notuyer’s approval, notapproval,to be unreasonably withheld, to be u
conditionedor delayed. Seller shalluse ithalluse its best efforts in its best effos best efforts in accordance with Prudent
OperatingPractices not to schedule Plannedule Planned Outages durinPlanned Outagesd Outages during the months of June, July,
August, and September.Seller shall not substitute Energy from any other source for the er shall not substitute Energr shall not substitute E
output of the Project during a Planned Outage. g a Planned Outage. Planned Outage.
In addition to PlannedOutages, Seller shall use Commercially addition to on toPlannedPlanneOuta
Reasonable Efforts to promptly notify Buyerof any Forced Outage lastingfor more than s to promptly notify mptly notify BuyerBu
sixty (60) consecutive minutes. Such Noticesecutive minutes. Such ve minutes. SucNoti shall contain information describing the
nature of the Forced Outage, the beginninge Forced Outageed Outage, the beginntheb date and time of such Forced Outage, the
expected end date and time of such Forcedend date and time of such nd date and time o Outage, the amount of Energy that Seller
expects will be provided during such Forced Outage, and any other information will be provided duringl be provided
reasonably requested by Buyer. With respect to any such Forced Outage, Seller shall onably requested by requested by BuyerB
provide Buyerwith such Notice by any reasonable means requested by Buyer, including rovideBuyeryerwith such sucNot
bytelephone or electronic mail.bytelephone or electronic elephone or elect
3.17.17.17Operations Logs and Access Rights. Operations LoOperations Logs and
Seller shall maintain a complete and accurate log of all material
operations and maintenance information on a daily baoperations ansis. Such log shall include, but not
be limited to, information on power produbbe limitection, fuel consumption, efficiency,
availability, maintenance performed, Planned Outages, Forced Outages,System avavailab
Curtailment Orders, results of inspectiurtons, manufacturer recommended services,
replacements, electrical characteristics of the generators, control settings or adjustments
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
25
Exhibit 'A'
of equipment and protective devices. Seller shall maintain this information in accordance
with Applicable Law, ERCOT Protocols, and Prudent Operating Practices, as applicable.
In case of conflict, Applicable Law shall prevail. Upon request by Buyer, Seller shall
provide material operations and maintenance information electronically to Buyer within
five (5) days of Buyer’s request.
Buyer, its authorized agents, employees and inspectors shall have the all have ve
right of ingress to and egress from the Project during normal business hours upon ss hours upupon
reasonable advance Notice and for any purposes reasonably connected with this nected with this with thi
Agreement;provided, that Buyershall observe all applicable Project safety rules that ect safety rules that afety rules that
Seller has communicated to Buyer; provided further, that Buyershall indemnify Seller shall indemnify Seller indemnify Seller
for the actions of its authorized agents, employees, contractors, inspectors and other ors, inspectors and otpectors andher er
representatives for harm or liabilities caused by Buyer, such authorized individuals or ch authorized individuals othorized individu
such activities while such authorized individuals are at the Site or theProject.Site or thethProjectojec.
3.18Availability Forecasting.
Seller shall provide Buyerwith forecasts of the delivery of Energy with forecasts of the delivrecasts of the
under this Agreement as described belowand as provided in the Operating Procedures.nd as provided in the nd as provided in the Opera
Such availability forecasts shall include the updated status of all Projectequipment that the updated status of all updatPro
may impact availability. Seller shall use use Commercially ReasonaCommercially Reasonable Efforts to forecast Commerci
the delivery of Energy under this Agreemengreement accurately and to t accurately and to transmit such information t accurately
in a format reasonably acceptable to Buyer.Buyerand Seller shall agree upon reasonable e to Buyeruyer..BuyerBuyerand Sellerand
changes to the requirements and procedures and procedures set forth procedures set set forth below from time-to-time, as
necessary to accommodate changes to operating and scheduling procedures of Buyer.changes to operating and schanges to operating
No later than: (i) the earlier of Septemblater than: (i) the earlier of Shan: (i) the earer 1 preceding the first Contract
Yearor forty-five (45) Days prior to the commencement of the first Contract Year; and (45) Days prior to the commays prior to the
(ii) September 1 of each calendar year for ev1 of each calendar year for ach calendar yeery subsequent Contract Year, Seller shall
provide to Buyera non-binding forecast of uyera nona non--binding forecasbinding fothe hourly delivery of Energy under this
Agreement for an average day in each montt for an average for an average dday in eacayh of the following calendar year in a form
reasonably acceptable to Buyer.bly acceptable to cceptable toBuyerBuye.
Ten (10) Business Days before the commencement of the first Contract Ten (Ten (10) Bu
Year, and thereafter ten (10) Business Days before the beginning of each month during Year, and thereafter ten (1, and thereafter
theDelivery Term, Seller shall provide to Buyera non-binding forecast of the hourly theDelivery TermDelivery Term, Sell
Energy deliveries under this Agreement for each day of the following month in a form EEnergy deliveries undnergy deliver
reasonably acceptable to Buyer.reasonably acreasonably accepta
On a daily basis, commencing the day before the Commercial
Operation Date, a day-ahead estimate of availableProjectCapacityOperation (the “Day-Ahead
Availability NoticeAAvailab”)for each day. Each Day-Ahead Availability Notice shall clearly
identify, for each hour, Seller’s forecast of dentDelivered Energy for such day. If Seller fails
to provide Buyer with a Day-Ahead Availability Notice, then (i) until Seller provides a
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
26
Exhibit 'A'
Day-Ahead Availability Notice, Buyer may rely on the most recent day-ahead forecast
submitted by Seller to Buyer.
3.19Weather Station.
No later than sixty (60) Days prior to the Commercial Operation Date, on
Seller, at its own expense, shall install and maintain at least one stand-alone stand-aa
meteorological station at the Site to monitor and report the meteorological data required data requiredquir
under Section 3.19(b). Seller shall maintain the meteorological station as necessary to as necessary to ecessary t
provide Project data.
Upon Commercial Operation, and continuing through the end of theg through the end of thegh the end of the
DeliveryTerm, Seller shall record and maintain the following data:data:
real power production by the Project for each hour;Project for each hProject for each hour;ou
changes in operating status and maintenance events;tus and maintenance events;and maintenance e
any unusual conditions found during inspections;tions found during inspectionions found during insp
any significant events related to the operation of the Project;nt events related to the opeents re
and
one (1) minute and hourlytime-a(1) minute and inute and hhourlyourlytimeveraged measurements from
data samples at ten (10) seconds or ten (10) seconds or greaten (10) secondsgreater frequency for the following
parameters at the Project: total globtheProjectProject: total global : total gal horizontal irradiance, total global
radiation within the plane of the array, air temperature, relative humidity,within the plane of the arrathe plane of the
precipitation, barometric pressure, backation, barometric pressure, bbarometric pres of module surface temperature and
other pertinent meteorological conditions.pertinent meteorological cont meteorolo
Buyershall have real-time access toBuyeBuyershall have realshall have t the required meteorological data as
prescribed in the Operating Procedures.Seller shall provide Buyera report within thirty din the n theOperating ProcedurOperating Pro
(30) days after the end of each month that ays after the end of each fter the end of emprovides the foregoing information for such
month as well as any other additional information that Buyerreasonably requests nth as well as any other well as any o
regarding the operation of the Projectthat is egarding the operation of thing the operationcollected and maintained by Seller in the
ordinary course of Projectoperations. ordinary course of nary course of ProjectPr
Seller shall make available to Buyerall data from any weather Sel
monitoring portals Seller elects to install at the Site.monitoring pmonitoring portal
3.20.20.20Change in Law. Change in L
If during the Term of this Agreement therIIff durie occurs any material change (including
promulgation, enactment, repeal and amendmentit) in the application of Applicable Law
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
27
Exhibit 'A'
including, without limitation, a federal renewable portfolio standard and any material change by
any state Governmental Authority regarding a Party’s authority to sell or purchase
Environmental Attributes and such government action either (a) renders this Agreement illegal or
unenforceable, (b) would render performance by a Party illegal or unenforceable; or (c)
eliminates, abolishes or makes illegal the trading or transferring of Environmental Attributes; or
there are changes to the definitions, mechanisms and processes for the sale and delivery of live
Environmental Attributes under the Texas Renewable Portfolio Standard (or any successor or successor sor
replacement product) (a “Program Change”), or PUCT Substantive Rule §25.173, then §25.173, thenth
promptly after any such government action or Program Change and Notice by the affected Party the affected Party fected Part
to the other Party, the Parties shall enter into good faith negotiations to make the minimum make the minimum e the minimum
changes to this Agreement necessary to render this Agreement in compliance with any such mpliance with any such ce with any such
government action or Program Change and shall take such other actions in compliance with thens in compliance with thmpliance with thee
terms and conditions of such government action or Program Change while preserving to the ange while preserving to thwhile preserving
maximum extent possible the benefits, burdens and obligations of each Party under this ons of each Party under ns of each Party und
Agreement; provided, however, that if any such government action or Program Change would action or Program Change action or Program Change
require any modification to the Project, and only if Seller and Buyer agree to amend the ller and Buyer agree to aer and Buyer agree
Agreement in order to meet the requirements of such government action or Program Change, government action or Progrrnment action
Seller shall implement such modifications to its sole satisfaction. The costs for such agreed upon atisfaction. The costs for suon. The costs
modifications will be the responsibility of Seller.
The following shall not be considered a Changed a Change in Law or be subjnge in Law in Law or be subject to this Section 3.20:
(i) any change in Applicable Law with respect tospect to Tax Attributes whic Tax Attributes which are or will be generated Tax Attribute
by the Project; (ii) any outright grants ants of money relating in of money relating in any way to the Project or f money relatin
Environmental Attribute; and (iii) any Environmental Attributes that the Buyer is not entitled to ny Environmental Attributesy Environmental A
pursuant to the provisions of Section 3.8(a). ion3.8(a)3.8(a).
3.21Contract Quantity and Guaranteed Energy Production. nd Guaranteed Energy Prodaranteed Energ
The quantity of Delivered Energy that Seller expects to be able to Thequantity of Deliverequantity of D
deliver to Buyer during the first Contract Year is274,913MWhuyer during the first Contracuyer during the first Co(“Contract Quantity”).
The Contract Quantity shall be reduced by ract Quantity shall be reducct Quantity shall be.50%during each subsequent Contract Year.
Throughout the Delivery Term, Seller shall beghout the Delivery Term, Sethe Delivery Te required to deliver to Buyer no less than
the Guaranteed Energy Production (as defined below) for thetwenty-four (24) Guaranteed Energy Prodnteed Energy
consecutive calendar month period immediately pronsecutive calendar month putive calendar meceding the end of each Contract Year
during the Delivery Term (“during the Delivery Termng the Delivery Performance Measurement Period”), commencing at the
ndnd
end of the second (2end of the secend of the second (2) Contract Year. “Guaranteed Energy Production”or “GEP”
means an amount of Energy, as measured in MWh, as described by the following means an ammeans an amount o
formula:formula:formula:
Guaranteed Energy Production = (160% * Contract Quantity in MWh) * \[(hours in Performance Guar
Measurement Period M– Seller Excuse hours in Performance Measurement Period) / hours in
Performance Measurement Period\]
If Seller has a GEP Failure, then within forty-five (45) days after the
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
28
Exhibit 'A'
last day of the last month of such Performance Measurement Period, Seller shall
promptly notify Buyer of such failure. Seller may cure the GEP Failure by providing to
Buyer an amount of Delivered Energy as set forth in the formula below (“GEP Cure”).
GEP Cure = (90% * Contract Quantity in MWh) * ((hours in next following Contract Year –
Seller Excuse hours in next following Contract Year) /hours in next following Contract Year) Yea
If Seller fails to qualify for the GEP Cure for a given Performance n Performanceman
Measurement Period, Seller shall pay, to Buyer,GEP Damages calculated pursuant to lated pursuant to pursuant t
Exhibit D.
If Seller provides a GEP Cure or pays GEP Damagesfor the Contract Damagessfor the Contract for the Contract
Years in a particular Performance Measurement Period (“od (“Cured Performance Cured PerformCured Performance
Measurement Period”), then for purposes of calculating the Guaranteed Energy ating the Guaranteed Enerhe Guaranteed
Production in the following Performance Measurement Period, the amount of Delivered t Period, the amount of Delit Period, the amount of De
Energy plus Deemed Delivered Energy in the second Contract Year of the Cured econd Contract Year of thond Contract Year
Performance Measurement Period, which is also the first Contract Year of the following the first Contract Year of thfirst Contract Y
Performance Measurement Period (“Shared Contract Yearontract Yeart Ye”), shall be deemed equal to ”), shall be deshal
the greater of(X) the Delivered Energy foy for the Shared Contract for the Shared Conr the Shared Contract Year, subject to
adjustment for Seller Excuse hours, or (Y) eighY) eighty percent (80%) of Cghty ty percent (80%) of Contract Quantity in
the Shared Contract Year, where X and Y are calculated as follows:d Y are calculated as followse calculat
X = (Delivered Energy in Shared Contract Year ) red Contract Year ) * (hours in Shntract Year ) * (hou* (hours in Shared Contract Year / (hours in
Shared Contract Year– Seller Excuse hours in Shared Contract Year)) or; er Excuse hours in Shared Contrase hours in Shared
Y = 80% * Contract Quantity in Shared Contract Year uantity in Shared Contract Year ty in Shared Contrac
The Parties agree that the damages sue Parties agree that the damaies agree that thstained by Buyer associated with
Seller’s failure to achieve the Guaranteed Energy Production requirement o achieve the Guaranteed ve the Guaranmaybe
difficult or impossible to determine, or thpossible to determineble to determine, or that obtaining an adequate remedy would be
unreasonably time consuming or expensive,and thy time consuming or expensy time consuming or eerefore agree that Seller shall pay the
GEPDamages to Buyer as liquidated damagesomages to Buyer as liquidatedges to Buyer as liqur, in the alternative, Seller shall provide
compensation in a manner as agreed to by botnsation in a manner as agreeon in a manner ash Buyer and Seller. In no event shall Buyer
be obligated to pay GEP Damages.obligated to pay GEP Damagd to pay GEP D
After the GEP Cure period expires, AftAfter theand if Seller has not achieved the
GEP Cure, Buyer shall provide Notice to SellGEP Cure, BuGEP Cure, Buyer shaller in writing of the amount of the GEP
Damages, if any, which Seller shall pay within sixty (60)days of receipt of the Notice Damages, if aDamages, if any, wh
(the(the(the““Cure Payment PeriodCurePCure Paym”). If Seller does not pay the GEP Damages within the Cure
Payment Period, then Buyer may, at its option, declare an Event of Default pursuant to Payment Payment Period
Section7.1(b)(iv) within ninety (90) days following the Cure Payment Period. If Buyer Section7.1(b
does not (i) notify Seller of the GEP Failure dodoes not or (ii) declare an Event of Default pursuant
to Section 7.1(b)(iv)within the ninety (90) day tto Sectperiod, if Seller has failed to pay the GEP
Damages, then Buyer shall be deemed to have waived its right to declare an Event of
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
29
Exhibit 'A'
Default based on Seller’s failure with respect to the Performance Measurement Period
which served as the basis for the Notice of GEP Failure, GEP Damages, or default.
ARTICLE 4
PROJECT DESIGN AND CONSTRUCTION
4.1Project Development.
Seller, at no cost to Buyer shall:
Design and construct the Project.
Seller shall have sole responsibility for the development, design and the development, design aevelopment, des
construction of the Project and Seller’s Interconnection Facilities and all related metering Facilities and all related metFacilities and all related m
facilities, including the obligation to obtain all necessary permits and execute all necessary permits and exeecessary permits and
necessary agreements with the Interconnection Provider and Transmission Operator Provider and Transmissionovider and Transm
necessary for the ownership, construction, operation and maintenance of the Project and ration and maintenance of thand maintenan
delivery of Net Output in accordance with the he terms hereof. Seller shahe terms hereof. Selleterms hereof. Seller shall be responsible
for filing all interconnection requests, including the ERCOT Resource Asset Registration luding the ERCOT Resourceng the ERCOT Re
Form, with ERCOT for interconnecting the Project with the Transmission Operator’s ng the Project with the Tre Projec
System.
Acquire all Governmental Approvals Governmental Approvalmental Approvas andand other approvals necessary for
the construction, operation, and maintenance of the Project.and maintenance of the Projd maintenance of
Complete all environmental impact studies necessary for the plete all environmental all environme
construction, operation, and maintenance of tion, and maintenance of tnd maintenancthe Project,including all environmental
analysis for the Project and related interconnection facilities.Project and related interconned related in
At BuyerAt BuyerAt Buyer’’’s request, provide to Buyer Sellers reqs request, p’s electrical specifications
and design drawings pertaining to the Project.gn drawings pertaining to therawings pertaining
Within fifteen (15) days aftereach semi-anniversary of theEffective Within Within fifteen
Dateuntil the Commercial Operation Date, Dateuntil the Commercial until the Commprovide to Buyer a Semiannual Progress
Reportand agree to regularly scheduled meetReportortand agree to reguand agree toings between representatives of Buyer and
Seller to review such reports and discuss SellerSeller to reviewSeller to review such r’s construction progress. The Semiannual
Progress Reportshall identify the milestones aProgress RepoProgress Reportshand indicate whether Seller has met or is on
target to meet such milestones.target to mtarget to meet suc
Provide access to Buyer, its authorized agents, employees and
inspectors for purpose of inspecting the Projectininspector’s construction site or on-site Seller data
and information pertaining to the Project and induring normal business hours upon reasonable
advance Notice.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
30
Exhibit 'A'
Provide QSE services.
4.2Guaranteed Commercial Operation.
Seller shall causetheProject to achieve Commercial Operation by the
Guaranteed Commercial Operation Date, unless extended in accordance with Section S
4.2(b).
Permitted Extensions to the Guaranteed Commercial Operation DateOperation Dateation Dat
are asfollows:
The Guaranteed Commercial Operation Date may be extended on Date may be extended e may be extended
on a day for day basis for a cumulative period equal to no more than one equal to no more than one to no more than one
hundred eighty(180) days if Seller has used Commercially Reasonable ed Commercially Reasonabmmercially Rea
Efforts to have the Project physically interconnected to the Transmission erconnected to the erconnected to the Transmiansm
Operator’s Systemand to complete all electric interconnection upgrades, if lectricectriinterconnection nterconnectiouupg
any, but such interconnection or electric interconnection upgrades cannot be ic iinterconnection nterconnectiouupgrades
completed by the Guaranteed Commercial Operation Date and Seller has mmercial Operation Date aial Operation
worked diligently to resolve the delay (“delay (“delTransmission DelayTransmission Delayansmission ”);
The Guaranteed Commercial Operation Date may be extended eed Commercial Operation Commerc
on a day for day basis for a cumulativefor a cumulative period equumulative p period equal to no more than one
hundred eighty (180) days if Seller hadays if Seller has used comif Seller has useds used commercially reasonable efforts
to obtain permits necessary for the cnecessary for the constructioary for the constronstruction and operation of the Project,
but is unable to obtain such permits ao obtain such permits and obtain such permnd Seller has worked diligently to
resolve the delay (“elay (““Permitting DelayPermitting DelPermitting Delay”); and”);
The Guaranteed Commercial Operation Date may be extended The GuaranteeThe Guaranteed Com
on a day for day basis for a cumulativeday for day basis for a cuday basis period equal to no more than one
hundred eighty (180) undred eighty (180) d eighty (180) days in the event of Force Majeure (“dadays inForce Majeure
ExtensionExtensioExtension”); provided that Seller works diligently to resolve the effect of the ”); prov”); provided that
Force Majeure and provides evidence of its efforts promptly to Buyer upon Force Majeure andForce Majeure and prov
Buyer’s writtBuyer’s writtBuyer’s written request.enen reque
Notwithstanding the foregoing, if Seller claims more than one NotwNotwithsta
Permitted Extension under Section 4.2(b), suchPermitted Extension undmitted Extension extensions cannot cumulatively exceed
one hundred eighty (180) days and all Permittone hundred eone hundred eighty (1ed Extensions taken shall be concurrent,
rather than cumulative, during any overlapping days. rather than cumrather than cumulat
If Seller claims a Permitted Extension, Seller shall provide Buyer with
ninety (90)ninety (90)days’ Noticeprior to the GuaranteedCommercial Operation Date, which
Notice must clearly identify the PerNNotice mitted Extension being claimed and include
information necessary for Buyer to verify thnforme length and qualification of the extension;
provided that in the case of a Force Majeure Extension, if ninety (90)days is
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
31
Exhibit 'A'
impracticable or impossible, Seller shall provide Notice as soon as possible after the
occurrence of the Force Majeure event.
4.3Cure Period and Delay Damages.
Seller shall causethe Projectto achieve the Commercial Operation by at
theGuaranteed Commercial Operation Date. If the Commercial Operation Date occurs Date occc
after the Guaranteed Commercial Operation Date after giving effect to Permitted to Permittedmitt
Extensions, then Buyer shall be entitled to draw upon the Project Development Securitylopment Securitynt Securit
for liquidated damages equal to Daily Delay Damages for each day or portion of a day or portion of a day rtion of a day
that (1) the Commercial Operation Date occurs after the Guaranteed Commercial uaranteed Commercial eed Commercial
Operation Date after giving effect to Permitted Extensions for up to a total of one for up to a total of one to a total of one
hundred eighty (180) days (“Project Cure Period”).
Each Party agrees and acknowledges that the damages that Buyer es that the damages that Bes that the damages that
would incur due to Seller’s delay in achieving the Guaranteed Commercial Operation Guaranteed Commercial OGuaranteed Commerc
Date maybe difficult or impossible to determinewith certainty and the Daily Delay ewith certainty and the Dwith certainty
Damages are an appropriate approximation of such damages.uch damages.mage
4.4COD Conditions.
The Parties shall cooperate to facilitate Seller’s testing of the Project necessary to satisfy the eller’s testing of the Projectsting of the
COD Conditions.Seller shall provide Buyer Notice Buyer Notice of the date SelNotice of the daof the date Seller believes that the Project
has achieved Commercial Operation along with along with written confirmawith written conwritten confirmation (substantially in the form
attached hereto as Exhibit H) by an officer an officer of Seller, authon officer of Selleof Seller, authorized to bind Seller and who is
familiar with the Project, of the satisfaction or occurrence of all COD Conditions. Buyer shall satisfaction or occurrence oaction or occurr
have up to ten (10) Business Days to reviewess Days to review such eays to review such evidence and raise any Commercially
Reasonable objection to Seller’s satisfaceller’s satisfaction of any ofsatisfaction of ation of any of the COD Conditions, provided, however,
that such Notice shall be deemed accepted by Bube deemed accepted by Buyemed accepted yer if Buyer fails to object within such time
period. Seller may provide Notice of completionprovide Notice of completiode Notice of com of the COD Conditions on an individual and
incremental basis pending resolupending resolution of any obending resolution otion of any objections, provided, however, that Buyer shall in all
cases have up to ten (10) Business Days to reto ten (10) Business Days tn (10) Business Dview and object to each Notice, and such Notice
shall be deemed accepted by Buyer if Buyer famed accepted by Buyer if Bccepted by Buyeils to object within such time period. The COD
Conditions are: s are:
all necessary and material permits, all necconsents, licenses, approvals, and
authorizations required to be obtained by Seauthorizations authorizations requireller from any Governmental Authority to
construct and/or operate the Project in coconstruct andconstruct and/or ompliance with Applicable Law and this
Agreement have been obtained and are in full force and effect;AgreemeAgreement have
Seller is in compliance with this Agreement in all material respects;
TheProject is available to commence normal operationsand able to be
delivered to Buyer at the Delivery Pointin accordance with Seller’s Operating
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
32
Exhibit 'A'
Procedures, the construction contract, and applicable manufacturers’ warranties;
Seller is obligated under, and in material compliance with, the
Interconnection Agreement;
The Project is fully interconnected to the Transmission Operator’s pe
System, has been fully tested, has achieved initial synchronization, and has been has bb
successfully operated at a generation level acceptable to the Transmission Operator, ion Operatorerat
without experiencing any abnormal or unsafe operating conditions on any interconnected ny interconnected rconnecte
system;
Seller has completed and met all testing requirements of the Project and ements of the Project and of the Project and
Seller’s Interconnection Facilities required by the Interconnection Agreement;tion Agreement;Agreement;
Seller has used Commercially Reasonable Efforts to timely make, onable Eonable Efforts to timely mfforts to timely
where applicable, all necessary governmental filings and/or applications for renewable s and/or applicaand/or applications for tionsre
energy credit accreditation and registration;
Seller has made all other arrangemenrangements necessary to delrangements necessary ts necessary to deliver the Product
to the Delivery Point;and
Seller has demonstrated the reliabilrated the reliability of the Phe reliabilityity of the Project’s communications
systems and communication interface with Buyer’s QSE.face with Buyer’s QSE.ith Buyer’s QSE
ARTICLE 5 ARTICLE 5ARTICLE 5
METERING AND MEASUREMENT ETERING AND MEASURRING AND ME
5.1Project Metering.
The Project will be installed utilizing the existiinstalled utilizing the existiinstalled utilizing the ng interconnection agreement associated with the
wind project owned by Capricorn Ridge Wind IV,LLCned by Capricorn Ridge Wind by Capricorn Ridg(the “Wind Project”). The Project will
be registered with ERCOT as a Split Generatiwith ERCOT as a Split GenERCOT as a Splion Resource in accordance with ERCOT Protocols
10.3.2.1 through 10.3.2.1.6. rough 10.3.2.1.6. 0.3.2.1.6.
5.2Metering System. Metering System. ering System.
The Seller shall ensure the Metering Systems,The Seller shall ensuThe Seller shall ensure th including all equipment required to provide
ERCOT and Buyer, or their agents and successoERCOT and BuyeERCOT and Buyer, or trs, with a Real-Time MW signal of the Split
Generation Resources, are designed, located, Generation ResGeneration Resourceconstructed, installed, owned, operated and
maintained in accordance with the Interconnection aintained in accoaintaiAgreement and Prudent Operating Practices
in order to measure and record the amount of Energyder to measder t delivered from the Project to the Delivery
Point. The meters shall be of a mutually acceptaThe mble accuracy range and type to the Parties, as
agreed upon in the Operating Procedures. The Metering Systems will be installed and owned,
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
33
Exhibit 'A'
operated and maintained in accordance with the terms of the Interconnection Agreement.Buyer
shall, in no way, be responsible, financially or otherwise, for the Project’s Metering Systems.
5.3Inspection and Adjustment.
The Partiesshall inspect and test all meters at such times as will a
conform to Prudent OperatingPractices, but not less often than every two (2) Contract 2) Contn
Years.Seller shall contact Buyer for the purpose of witnessing and verifying proper rifying propeprop
inspection and adjustment, if any, to meters.
If any seal securing the metering is found broken, if the Metering oken, if the Metering if the Metering
System fails to register, or if the measurement made by a metering device is found upon ing device is found upon vice is found upon
testing to vary by more than one percent (1.0%) from the measurement made by the measurement made by thesurement made by the
standard meter used in the test, an adjustment shall be made correcting all measurements de correcting all measuremeecting all measu
of Energy made by the Metering System during: (i) the actual period when inaccurate he actual period when inacche actual period when inac
measurements were made by the Metering System, if that period can befthat period can be determinthat period can be det determined to the
mutual satisfaction of the Parties; or (ii) if such actual period cannot be determined to the tual period cannot be determperiod cannot
mutual satisfaction of the Parties, the second half of the period from the date of the last half of the period from the dthe period fro
test of the Metering System to the date such failure is discovered or such test is madech failure is discovered or sh failure is discovered
(“Adjustment Period”). If the Parties are unable to agree on the amount of the are unable to agree on e una
adjustment to be applied to the Adjustment ment Period, the amount of Period, the amount of the adjustment shall be Period, th
determined: (A) by correcting the error if error if the percentage of the percentage of error is ascertainable bythe percent
calibration, tests or mathematical calculation; or (B) calculation; or (B) if not soulation; or (B) if nif not so ascertainable, by estimating
on the basis of deliveries madde under similar conditions e under similar conditions during the period since the last er similar condit
test.No later thanthirty (30) Days after the determination of the amount of any y (30) Days after the dete30) Days after t
adjustment, Buyershall pay Seller any addi pay Seller any additional Seller any addittional amounts then due for deliveries of
Energy during the Adjustment Period or, conversdjustment Period orment Period or, conver,ely,Buyershall be entitled to a credit
against any subsequent payments for Energy.uent payments for Energyyments for Ene.
Buyerand its representatives shall be entitled to be present at any test, Buyeruyerand its representand its repr
inspection, maintenance, adjustments and re, maintenance, adjustmentsmaintenance, adjuplacement of any part of the Metering
System relating to obligations under this Agreement.relating to obligations underng to obligations
ARTICLE 6
EARLY TERMINATION
6.111Early Termination. Early TerminaEarly Termination.
In addition to applicable termination rights under Sections 7.2 and 15.1,
this Agreement may be terminated prior tothis AgreemenAgr the expiration of the Term as follows:
By Seller if an Interconnection Agreement in form and
substance satisfactory to Seller, in its sole discretion, is not executed on or
before the Guaranteed Commercial Operation Dateprovidedthat,in each
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
34
Exhibit 'A'
case, Seller shall give Buyer Notice of such termination within fifteen (15)
Days after such date;
By Seller in the event that Seller has not obtained the
necessary fee, leasehold or other title to or interest in the Site and all
Governmental Approvals necessary to construct and operate the Project in roj
the manner contemplated by this Agreement and which are final and no nal and nd
longer subject to appeal or legal challenge, on or before the Guaranteed he Guaranteedante
Commercial Operation Dateprovidedthat Seller gives Buyer Noticeof such er Noticeiceof such of suc
termination within fifteen (15) Days after such date;
By Seller if all approvals of its management and board of anagement and board of ent and board of
directors (or equivalent governing body) required for the execution, delivery d for the execution, deliverythe execution, de
and performance of this Agreement have not been granted on or before thebeen granted on or before granted on or bef
Guaranteed Commercial Operation Date providedprovidedprovidedthat Seller shall provide that Seller hat Seller shallllpp
Buyer Noticeof such termination within fifteen (15) Days after such date; in fifteen (15) Days after sufifteen (15) Days af
and
By Buyer, if all approvals by the Denton City Council ll approvals by l approvals by the Dentothe
required for the execution, delivery and elivery and performance of try anperformance of this Agreement have
not been granted on or before May 30, 2018,efore May 30, 2018May 30, ,providedprovidthat Buyer provide
Seller Noticeof such termination within fifteen (15) Days after such date.rmination within fifteen (15)n within fift
Notwithstanding any provision ofthis Agreement to the contrary, in the ding any provision ofny provision ofthis Ath
event of termination pursuant to this Sectuant to this Section nt to this Sectionion 6.1, the Parties shall be released and 6.1, th
discharged from any obligations arising or acigations arising or accruing ns arising or acccruing hereunder from and after the date of
such termination and shall not incur any additishall not incur any additionnot incur any onal liability to each other as a result of
such termination, provided,howeverprovided,d,howeverhowever, that such termination shall not discharge or relieve , that suchtha
either Party from any obligation that has accm any obligation that has accobligation that rued prior to such termination, any indemnity
obligations under ARTICLE 11, or the confidentiality obligations set forth in ARTICLE nderARTICLE 11ARTICLE 11, or the c, or
13,which provisions shall survive any termination of this Agreement. provisions shall survive anyrovisions shall surv
If the Agreement is terminated by SeIf the AgrIf the Agreemeller pursuant to Sections 6.1(a)(i)
through (iii), Buyer shall have the right to retarough (iii), Buyer shall have), Buyer shain the Project Development Security as its
sole and exclusive remedy for such termination. For the avoidance of doubt, if this sole and exclusive remedyand exclusive r
Agreement is terminated by Buyer pursuant Agreement is terminatedeement is termto Section 6.1(a)(iv), Buyer shall return the
Project Development Security to Sellerno laProject DeveloProject Development ter than ten (10) days after the termination
date.dadate.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
35
Exhibit 'A'
ARTICLE 7
EVENTS OF DEFAULT
7.1Events of Default.
An “Event of Default” shall mean,
with respect to a Party that is subject to the Event of Default(the f Defaultt(the(t
“Defaulting Party”)the occurrence of any of the following:
the failure by such Party to make, when due, any payment hen due, any payment e, any payment
required pursuant to this Agreement and such failure is not remedied within re is not remedied within t remedied within
ten (10) Business Days after Notice thereof;
any representation or warranty made by such Party herein is nty made by such Party hernty made by such Party he
false or misleading in any material respect when made or when deemed made ct when made or when deemwhen made or when
or repeated, and such default is not remedied within thirty (30) days after remedied within thirty (30)medied within thirt
Notice thereof;
the failure by such Party to peuch Party to perform anyh Party to perform rform anymaterial covenant or m
obligation set forth in this Agreement (except to the extent constituting a s Agreement (except to theeement
separate Event of Default) and such failure is not remedied within thirty (30) lt) and such failure is not remuch failure
days after Notice thereof; provided, howereof; provided, however, provided, however, that if such failure is not
reasonably capable of being remedied within the thirty (30) day cure period, e of being remedied within ting remedied wi
such Party shall have such additill have such additional timhave such additonal time (not exceeding an additional
ninety (90) days) as is reasonably necessary to remedy such failure, so long days) as is reasonably necesas is reasonably
as such Party promptly commences and diligently pursues such remedy.arty promptly commences anromptly commen
such Party becomes Bankrupt; such Partysuch Party becom
such Party assigns this Agreement or any of its rights suchsuch Party
hereunder other than in compliance with ARTICLE 14; hereunder other thahereunder other than in c
such Party consolidates or amalgamates with, or merges with such
or into, or transfers all or substantially alor into, or or into, or transfl of its assets to, another entity and,
at the time of such consolidation, amalgamation, merger or transfer, the at the tat the time o
resulting, surviving or transferee entity resresulting, sfails to assume all the obligations of
such Party under this Agreement to which it or its predecessor was a party by susuch Pa
operation of Law or pursuant to an agreement reasonably satisfactory to the opera
other Party; orot
with respect to Seller as the Defaulting Party, the occurrence of any of
the following:the fo
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
36
Exhibit 'A'
Seller fails to satisfy the Performance Assurance requirements
set forth in Section 9.4, as applicable, in each case within five (5) Business
Days after receipt of Notice of such failure;
if at any time, Seller delivers or attempts to deliver to the
Delivery Point for sale under this Agreement Energy that was not generated gen
by the Project; or
failure by Seller to achieve the Commercial Operation Date by Operation Date by on Date b
the Guaranteed Commercial Operation Date,after given effect toPermitted effect toct toPermittedPermitted
Extensions or through payment of Daily Delay Damages.es.
failure by Seller to achieve the Guaranteed Energy Production aranteed Energy Productioneed Energy Production
requirement as set forth in Section 3.21(a) of this Agreement after the one (1) his Agreement after the one reement after the
year GEP Cure period Seller (A) has failed to cure the GEP Failure and (B) d to cure the GEP Failure and to cure the GEP Failure a
has failed to pay GEP Damages in the time period set forth in Section 3.21(f). me period set forth in Sectione period set forth in S
7.2Remedies; Declaration of Early Termination Date. Date.
If an Event of Default with respect to a to a Defaulting Party shall ha Defaulting Party Defaulting Party shall have occurred and
be continuing, the other Party (“Non-Defaulting Partyng Partyrty”) shall have the right ”) sha”) shall have the rigto the following:
send Notice, designating a day, no earlier than the day such Notice is esignating a day, no earlier ating a day, no ea
deemed to be received and no later than twentylater than twenty (20) days han twenty (20) (20) days after such Notice is deemed to
be received, as an early termination date of this Agreement (“mination date of this Agreemnation date of thisEarly Termination Date”)
on which it shall, as Seller’s sole and excler’s sole and exclusive remeole and exclusiveusive remedy, (i) collect the Damage Payment
if any Event of Default arose at any time ult arose at any time prior ose at any time prior to the commencementof the Delivery
Term, or (ii) collect the Termination Paymenct the Termination Payment Termination Payt if any Event of Default arose during the
Delivery Term;
accelerate all amounts owing between accelerate all amountccelerate allthe Parties and end the Delivery
Term effective as of the Early Termination Date;fective as of the Early Termive as of the Early
withhold any payments due to the Defaulting Party under this withhwithhold an
Agreement;Agreement;ement;
suspend performance; andsuspe
exercise its rights pursuant to Section 9.4 to draw upon and retain
Performance Assurance. PerformaPerformance A
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
37
Exhibit 'A'
7.3Termination Payment.
The“Termination Payment” shall be the aggregate of all Settlement Amounts plus any or all
other amounts due to the Non-Defaulting Party netted into a single amount. Except in the case of
a termination of this Agreement by the Non-Defaulting Party solely as a result of an Event of
Default by the Defaulting Party under Section 7.1(a)(iv), if the Non-Defaulting Party’s aggregate aggr
Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this tion of tof
Agreement, the Termination Payment shall be zero. The Non-Defaulting Party shall calculate, in all calculate, inate,
a Commercially Reasonable manner, a Settlement Amount as of the Early Termination Date. Termination Date. ation Date
Third parties supplying information for purposes of the calculation of Gains or Losses may ains or Losses may or Losses may
include, without limitation, dealers in the relevant markets, end-users of the relevant product, of the relevant product, relevant product,
information vendors and other sources of market information. The Settlement Amount shall not tlement Amount shall not Amount shall not
include consequential, incidental, punitive, exemplary, indirect or business interruption damages; usiness interruption damagess interruption dam
provided, however, that any lost Capacity Attributes and Environmental Attributes shall be vironmental Attributes shalronmental Attributes sh
deemed direct damages covered by this Agreement.Without prejudice to the Non-Defaulting ut prejudice to the Non-Defut prejudice to the Non-Def
Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement not have to enter into repnot have to enter in
transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the rty agrees and acknowledgegrees and ackn
actual damages that the Non-Defaulting Party would incur in connection with the termination of incur in connection with theconnection w
this Agreement would be difficult or impossible to predict with certainty, (b) the Termination to predict with certainty, (b predict with certain
Payment described in this section is a reasonable and appropriate approximation of such onable and appropriate appe and
damages, and (c) the Termination Payment describedescribed in this section is ted in this d in this section is the exclusive remedy of
the Non-Defaulting Party in connection with with the termination of thithe termination of this Agreement but shall not termination
otherwise act to limit any of the Non-Defaulting Party’efaulting Party’ting Party’s rights or remedies if the Non-Defaulting s rights rights or re
Party does not elect to terminate this Agreement as its remedy for an Event of Default by the is Agreement as its remedyAgreement as it
Defaulting Party.
7.4Notice of Payment of Termination Payment. f Termination Payment. mination Payme
As soon as practicable after a designation of the after a designation of the Er a designation oe Early Termination Date, Notice shall be given
by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment ing Party to the Defaulting ing Party to the Defau
and whether the Termination Payment is due to Termination Payment is dermination Paymenthe Non-Defaulting Party. The Notice shall
include a written statement explaining in reasonable detail the calculation of such amount and the ten statement explaining in ratement explainin
sources for such calculation. The Termination Payment shall be made to the Non-Defaulting r such calculation. The Teralculation. Th
Party, as applicable, within twenty (20) Busis applicable, within twenty (2icable, within tweness Days after such Notice is effective.
7.5Disputes with Respect to Termination Payment. Disputes with Disputes with Respect t
If the Defaulting Party disputes the Non-If the Defaulting PIf the Defaulting Party Defaulting Party’s calculation of the Termination
Payment, in whole or in part, the Defaulting PartPayment, in whoPayment, in whole or y shall, within five (5) Business Days of receipt
of the Non-f the Non-f theDefaulting Party’s calculation of the TeDefaulrmination Payment, provide to the Non-
Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding aulting Partyaultin
the Termination Payment shall be determinatimined in accordance with ARTICLE 17.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
38
Exhibit 'A'
7.6Rights and Remedies Are Cumulative.
Except where liquidated damages are provided as the exclusive remedy, the rights and remedies
of a Party pursuant to this ARTICLE 7 shall be cumulative and in addition to the rights of the
Parties otherwise provided in this Agreement.
7.7Mitigation.
Any Non-Defaulting Party shallattempt to mitigate its Costs and Losses resulting from any sulting from any g from an
Event of Default of the other Party under this Agreement.
7.8Project Investor Cure Periods.
Notwithstanding the foregoing provisions of this ARTICLE 7, in the case of an Event of Default the case of an Event of Defae of an Event of
by Seller, Buyer will provide Project Investors (if any) with notice of such Event of Default in notice of such Event of Defanotice of such Event of Def
accordance with the Project Investor information set forth in Exhibit I (which information may in Exhibit I (which informan Exhibit I (which inf
be updated from time to time upon Notice to Buyer without Amendment to this Agreement) without Amendment to this ut Amendmen
concurrent with the delivery of such notice to Seller. Such ProjecSuch Project Investors shallroject Investot Investors shall have the right
(but not the obligation) either to cure the Event of Default on behalf of Seller, or upon payment Default on behalf of Seller, Default on behalf of S
to Buyer of amounts due from Seller but not paid d by Seller, to assume, or caby Seller, to assume, or Sellecause its designee or a
lessee or purchaser of the Project to assume, all of all of the rights and obligatithe rights and obligations of Seller under this the rights
Agreement arising as of the date of such assumptisumption, as more fully deson, as more fully described in Section 14.4, for n, as more fu
a period of ninety (90) days commencing upon thng upon the expiration of apon the expiratioe expiration of any cure period applicable to
Seller under Section 7.1(a).
ARTICLE 8 ARTICARTICLE 8
PAYMENT PAYMPAYMENT
8.1Billing and Payment. Payment. nt.
On or about the tenth (10th) day of each monthe tenth (10nth (1thh) day of ea) day h beginning with the month following the
Commercial Operation Date and every month therOperation Date and every ation Date and eeafter, and continuing through and including
the first month following the end of the Delivery month following the end of tlowing the eTerm, Seller shall provide to Buyer an invoice
covering the services provided inng the services provided in te services provide the preceding month determined in accordance with ARTICLE
5 (which may include preceding months), with which may include precedinhich may includeall component charges and unit prices identified
and all calculations used to arrive at invoicedand all calculations used to nd all calculations u amounts described in reasonable detail. Buyer
shall pay the undisputed amount of such invoices on shall pay the undispshall pay the undisputed aor before thirty (30) days after date of the
invoice. If either the invoice date or payment date invoice. If eitheinvoice. If either the iis not a Business Day, then such invoice or
payment shall be provided on the next following Business Day. Each Party will make payments paymepayment shall be pro
by electronic funds transfer, or by other mutually agreeable method(s), to the account designated electronic fundelectro
by the other Party. Any undisputed amounts not paidother Pot by the due date will be deemed delinquent
and will accrue interest at the Interest Rate, suchacc interest to be calculated from and including the
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
39
Exhibit 'A'
due date to but excluding the date the delinquent amount is paid in full. Invoices may be sent by
facsimile or e-mail.
8.2Disputes and Adjustments of Invoices.
A Party may, in good faith, (a) dispute the correctness of any invoice, or any adjustment to an ent
invoice, rendered under this Agreement or (b) adjust any invoice for any arithmetic or ithmetictic
computational error, in each case within twenty-four (24) months of the date the invoice, or he invoice, orce,
adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other reof, or any other r any othe
claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the puted portion of the portion of the
invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall nvoice adjustment shall e adjustment shall
be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed Payment of the disputed nt of the disputed
amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any esolution of the dispute, anytion of the disput
required payment shall be made within two (2) Business Days of such resolution.Inadvertent of such resolution.resolutionInadverInad
overpayments shall be returned upon request within ten (10) calendar days.Any dispute with calendar days.calendar daysAny disputAny disput
respect to an invoice is waived if the other Party is not notified in accordance with this Section tified in accordance with thified in accordance wi
8.2 within twenty-four (24) months after the invoice is rendered or subsequently adjusted, except endered or subsequently adjured or subsequ
to the extent any misinformation was from a third party not affiliated with any Party and such arty not affiliated with any affiliated wit
third party corrects its information after the twentyy-four (24) month period. If-four (24) month period. If an invoice is not four (24) month perio
rendered within twelve (12) months after the close of the month during which performance close of the month duringof t
occurred, the right to payment for such performance is waived. mance is waived. is waived
8.3Netting of Payments.
The Parties hereby agree that they shall dischargshall discharge mutual debtall discharge mutue mutual debts and payment obligations due and
owing to each other on the same date through nettme date through netting, in wthrough nettinging, in which case all amounts owed by each
Party to the other Party for the purchase and sale of Product during the monthly billing period the purchase and sale of Prurchase and sal
under this Agreement shall be netted so that onlll be netted so that only the ted so that only the excess amount remaining due shall be paid
by the Party who owes it. it.
ARTICLE 9 AR
INSURANCE, CREDIT AND COLLNSURANCE, CREDIT ANRANCE, CREDATERAL REQUIREMENTS
9.1Insurance. surance.
In connection with Seller’onnection with Seller’on with Ss performance of its duties and obligations under this Agreement, s pe
during the Delivery Term, Seller shall maintainduring the Delivery Teduring the Delivery Term, Se insurance in accordance with Exhibit G.
9.29.29.2Grant of Security Interest. Grant ofGrant of Securi
To secure its obligations under this Agreement asecsecure its oblurnd to the extent Seller delivers Performance
Assurance hereunder, Seller hereby grants to ance herancBuyer a present and continuing first priority
security interest in, and lien on (and right of setnteoff against), and assignment of, all cash collateral
and cash equivalent collateral and any and all proceeds resulting therefrom or the liquidation
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
40
Exhibit 'A'
thereof, whether now or hereafter held by, on behalf of, or for the benefit of, Buyer, and each
Party agrees to take such action as the other Party reasonably requires in order to perfect the
Buyer’s first-priority security interest in, and lien on (and right of setoff against), such collateral
and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time
after the occurrence and during the continuation of an Event of Default by Seller or an Early
Termination Date as a result thereof, Buyer may do any one or more of the following: (i) wing
exercise any of the rights and remedies of a secured party with respect to all Performance Performanma
Assurance, including any such rights and remedies under Law then in effect; (ii) exercise its ii) exercise itsse
rights of setoff against such collateral and any and all proceeds resulting therefrom or from the efrom or from theor from th
liquidation thereof; (iii) draw on any outstanding Letter of Credit issued for its benefit; and (iv) r its benefit; and (iv) enefit; and (iv)
liquidate all or any portion of any Performance Assurance then held by or for the benefit of y or for the benefit of for the benefit of
Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or r, including any equity oring any equity or
right of purchase or redemption by Seller. Buyer shall apply the proceeds of the collateral he proceeds of the collateraoceeds of the co
realized upon the exercise of any such rights or remedies to reduce the Sece the See the Seller’s obligations under ller’s obligationsller’s obligations un
the Agreement (Seller remaining liable for any amounts owing to Buyer after such application), g to Buyer after such applicg to Buyer after such applic
subject to Buyer’s obligation to return any surplus proceeds remaining after such obligations are s remaining after such obligremaining after such
satisfied in full.
9.3Seller Financial Statements.
If requested by Buyer, the Seller shall deliveer within one hundred twentr within one hundred twenty (120) days following in one hu
the end of each fiscal year of Seller’s Ultimate Parent Company: mate Parent Company: (i) aent Compan(i) a copy of Seller’s Ultimate
Parent Company’s annual report or 10K reportK reportort, and (ii) within sixty (60) days after the end of , and (ii) with, and (ii) within six
each of its first three fiscal quarters of each fiscal year, a copy ofof each fiscal year, a copy f each fiscal yea such Seller’s Ultimate Parent
Company’s quarterly report containing unaudited taining unaudited consolidaing unaudited coconsolidated financial statements for such
fiscal quarter, in each case unless otherwise publicly available. If any such statements shall not ess otherwise publicly availaherwise publicly
be available on a timely basis due to a delay in is due to a delay in preparae to a delay in ppreparation or certification, such delay shall not
be an Event of Default so long as the Seller dio long as the Seller diligentls the Seller diligently pursues the preparation, certification and
delivery of the statements. nts.
9.4Performance Assurance. nce Assurance. ce Assurance.
Seller agrees to deliver to BuyercSeller agSeller agrees ollateral to secure its obligations
under this Agreement, which Seller shall maintain in full force and effect for the period nder this Agreement, whichAgreement,
posted with Buyer, asfollows:posted with ed with Buyer, asBuyer, asfollo
Performance Assurancein the amount of TenMillionDollars
($10,000,000)(($100(“Project Development Security”) in the form of cash, Letter
of Credit or Guaranty within five (5) Business Days following the Effective of C
Date of this Agreement until Seller posDts Delivery Term Securityafter the
Commercial Operation Date;
Performance Assurance in the amount of Four Million Five
Hundred Thousand Dollars ($4,500,000)(“Delivery Term Security”) in the
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
41
Exhibit 'A'
form of cash, Letter of Credit or Guaranty from the Commercial Operation
Date until the end of the Term; provided that Seller may elect to apply the
Project Development Security toward the Delivery Term Security.
If,after the Commercial Operation Date, no amounts are due and owing
toBuyerunder this Agreement, then Seller shall no longer be required to maintain thenta
Project Development Security, and Buyershall return to Seller the Project Development evelopmpm
Security, less the amounts drawn, if applicable,in accordance with Section9.4(c). The n9.4(c). Th T
Project Development Security (or portion thereof) shall be returned to Seller within five Seller within five within fiv
(5) Business Days of Seller’s provision of the Delivery Term Security unless, with ecurity unless, with y unless, with
respect to cash held as Project Development Security, Seller electscts to apply the Project to apply the Project apply the Project
Development Security toward the Delivery Term Security.
Any amounts owed by Seller to Buyerunder this Agreement (other than nder this Agreement (other ths Agreement (oth
disputed amounts) and not satisfied within thirty (30) Days of becoming due and owing Days of becoming due and Days of becoming due and
may be satisfied by Buyeron a draw on Seller’s Performance Assurance until such Performance AssuranPerformance Assurance u
Performance Assurance has been exhausted. In addition, upon termination, Buyershall addition, utiopon termination, term
have the right to draw upon Seller’s Performance Assurancefor any undisputed amounts ce Assuraurancenfor any undisany
owed to Buyerunder this Agreementif not paid when due pursuant to Section8.1.not paid when due pursuanot paid when due pu
Seller’s Performance Assurance shall not be subjectt be subjectsubje to replenishment; however, lack of to replenishme
Performance Assurance funds due to draw-down draw-down by Buyer does down by by Buyer does not excuse Seller from
those amounts due and owing, if any, toBuyer by Seller. y, toBuyer by Seller. yer by Seller
Cash held by BuyeryBuyerras Seller’s Performance Assurance as Seller’s Peras Seller’s Performashall be held in
an interestbearing account provided that, inteprovided that, interest on covided that, interrest on cash held as Project Development
Securityshall be retained by Buyeruntil Selld by Buyeruyeruntil Seller postuntil Selleer posts the Delivery Term Security. Upon
Seller’s posting of the Delivery Term Security, all accrued interest on the the Delivery Term Securitelivery Term Project
Development Securityshall be transferred to Seurityshall be transferred to Sll be transferredller in the form of cash by wire transfer to
the bank account specified by Sent specified by Seller. Afecified by Selleller. After Seller posts the Delivery Term Security,
Buyershall transfer (as described in the prtransfer (as described in theer (as described ieceding sentence),on or before each Interest
Payment Date,the amount of interest due to Seller for such Delivery Term Security. Dateate,,the amount of interest dthe amount of in
If, during the Term, there shall occIf, duringIf, during the Tur a Downgrade Event in respect of
Seller’s Guarantor, then Seller shall delieller’s Guarantor, then Sellerarantor, thenver to Buyer replacement Performance Assurance
in the form of a Letter of Credit, cash or in the form of a Letter oe form of a Lea replacement Guaranty from a different
Guarantor (meeting the requirements set forth in Guarantor (meeting the arantor (methe definition thereof) in lieu thereof in
an amount equal to the then applicable an amount eqan amount equal to amount of Performance Assurance; provided,
however, that Seller shall only be required tohohowever, that Sellvertha maintain its Performance Assurance in the
form of a Letter of Credit, cash or a replacement Guaranty for so long as (1) form of aform of a Letteif Seller’s
Guarantor has a Credit Rating from three RaGuarantor hatings Agencies, the Credit Ratings from two
Ratings Agencies remain below BBB-RRatings Afrom S&P, Baa3 from Moody’s, or BBB-from
Fitch; or (2) FFitch; if Seller’s Guarantor has Credit Rating from only one or two Ratings
Agencies, the Credit Rating from one of thgee Rating Agencies remains below BBB-from
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
42
Exhibit 'A'
S&P, Baa3 from Moody’s, or BBB- from Fitch; or (3) no Ratings Agency rates Seller’s
Guarantor.
Seller’sobligation to maintain the applicable Performance Assurance
shall terminate upon the occurrence of the following: (i)the Term of the Agreementhas
ended, or the Agreementhas been terminated pursuant to Section7.2, as applicable; and abl
(ii) all payment obligations of each Party arising under this Agreement, Termination Terminatna
Payment, indemnification payments or other damages are paid in full.Upon the l.Upon then t
occurrence of the foregoing, each Party shall promptly return to the other Party the e other Party the r Party th
unused portion of the applicable Performance Assurance, including the payment of any the payment of any ayment of any
interest due thereon.
Any Letter of Credit provided pursuant to this Agreement must provide, his Agreement must providegreement must pr
among other things, that the Buyer is entitled to draw the full amount of such Letter of e full amount of such Lettermount of such L
Credit if: (i) the Letter of Credit has not been renewed or replaced within thirty (30) days or replaced within thor replaced within thirty (30(30
prior to the expiration date of the Letter of Credit; or (ii) the issuer of the Letter of Creditr (ii) the issuer of the Letter (ii) the issuer of the L
fails to maintain (1) a Credit Rating of at least A-from S&P and at least A3 from t A--from S&P and at leafrom S&P a
Moody’sor (2) assets of at least $10 Billion,an,andd, in each case,the Party required to , in each cn eaase,se,the Par
provide the Letter of Credit has failed, withthin ten (10) Business Dayhin ten (10) Businessin ten (10) Business Days after receipt of
Noticethereof by Buyer to replace such Letter Letter of Credit with another of Cof Credit with another Letter of Credit, in
a form reasonably acceptable to the issuer of suer of the f the the Letter of Credit and Buyer. Costs of a Letter of Credit Lett
Letter of Credit shall be borne by Seller.eller.
ARTICLE 10 ARTICLE 10ARTICLE 10
REPRESENTATIONS, WARRANTIES AND COVENANTS ATIONS, WARRANTIES ANS, WARRANT
10.1Representations and Warranties. nd Warranties. ran
On the Effective Date, each Party represents and warrants to the other Party that: e, each Party represents and h Party represents
it is duly organized, validly existing and in good standing under the it is duly orgt is duly oranize
laws of the jurisdiction of its formation;of the jurisdiction of its formjurisdiction of it
it has all Governmental Approvals necessary for it to perform its it has all t ha
obligations under this Agreement, and, in thobligagations under this Agtions under the case of Seller, all Governmental Approvals
necessary to construct, operate and maintainnnecessary to essary to construcc the Project and related interconnection
facilities;facilitiefacilitiess;;
the execution, delivery and performance of this Agreement is within its
powers, have been duly authorized by all nepowers, havcessary action and do not violate any of the
terms and conditions in its governing documents, teterms anany contracts to which it is a party or
any Applicable Law;ny A
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
43
Exhibit 'A'
this Agreement and each other document executed and delivered in
accordance with this Agreement constitutes a legally valid and binding obligation
enforceable against it in accordance with its terms, subject to any Equitable Defenses;
it is not Bankrupt and there are no proceedings pending or being
contemplated by it or, to its knowledge, threatened against it which would result in it sul
being or becoming Bankrupt;
except as may be set forth in its reports filed with the SEC, there is not SEC,there is not there is no
pending or, to its knowledge, threatened against it or any of its Affiliates any legal Affiliates any legal ates any legal
proceedings that could materially adversely affect its ability to perform its obligations perform its obligations m its obligations
under this Agreement;
no Event of Default with respect to it has occurred and is continuing has occurred and is continurred and is conu
and no such event or circumstance would occur as a result of its entering into or a result of its entering ina result of its entering i
performing its obligations under this Agreement;
it is acting for its own account, hant, has made its own indepens made its own independent decision made its own
to enter into this Agreement and as to whether this Agreement is appropriate or proper for errthis Agreement is approprthis Agreement is ap
it based upon its own judgment, is not relyinying upon the advice or recog upon the advice or recommendations of the g upon the advice o
other Party in so doing, and is capable of aof assessing the merits of assessing the merits of and understanding, and sessing t
understands and accepts, the terms, conditions and risks of this Agreement; andconditions and risks of this Ans and risks
it has entered into this Agreement d into this Agreement in conhis Agreement iin connection with the conduct of its
business and it has the capacity or the ability acity or the ability to make oty or the ability tto make or take delivery of the Product as
provided in this Agreement.nt.
10.2General Covenants.
Each Party covenants that throughout the Term: that throughout the Term: hroughout the Te
it shall continue to be duly organized, validly existing and in good it shall continue tt shall conti
standing under the Laws of the jurisdiction of its formation;ng under the Laws of the jurder the Laws of t
it shall maintain (or obtain from time to time as required, including it shall mat sha
through renewal, as applicabthrouugh renewal, as applgh renewal, asle) all Governmental Approvals necessary for it to legally
perform its obligations under this Agreement; perform its oblperform its obligations
it shall perform its obligations under this Agreement in a manner that
does not violate any of the terms and cdoesnotdoes not violonditions in itsgoverning documents, any
contracts to which it is a pacontracts torty or any applicable Law; and
itshall not dispute its status as a “forward contract merchant”within
the meaning of the United States Bankruptcy Code.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
44
Exhibit 'A'
10.3Seller Covenants.
Seller covenants as follows:
during the Delivery Term, the Projectshall be operated and maintained
in accordance with this Agreement,Applicable Laws, and Prudent Operating Practices; Prac
and
throughout the Term that it, or its permitted successors or assigns, shall s or assigns, signsshallsha
maintainownershipof a fee, easement, long-term leasehold interest, or other similar asset r other similar asset er similar asset
ownership interest in the Project.
10.4Buyer’s Covenants.
Buyer covenants as follows:
from the date hereof through the exgh the expiration or terminexpiration orpiration or termination of this
Agreement, Buyershall comply with this Agreement and Applicable Laws;reement and Applicable Lawreement and Applicabl
Buyerwill, at Seller’s expense, reasonably cooperate with Seller in r’s expense, reasonably coopense, r
opposing, and will not support any action of any regulatory body having jurisdiction y action of any regulatory of any reg
thereover that could result in the modifihe modificationodificatiocationor vitiation of any of the terms or or vitiatioor v
conditions hereof or have any other material adother material adverse effecmaterial adverseverse effect on Seller, the Projector this
Agreement; and
Buyerer’s obligations under this Agreement shall ’s obligations under this obligations underqualify as operating
expenses which enjoy first priority paymenoy first priority payment at priority paymet at all times under any and all bond or other t
ordinances or indentures to which Buyeris a padentures to which o which BuyerBisrty and shall be included as part of the
rate calculations required by any rate-relatns required by any ratequired by any rate-related debt covenants to which Buyeris bound.
ARTICLE 11 AR
TITLE, RISK OF LOSS, INDEMNITIES TITLE,TITLE, RISK
11.1Title and Risk of Loss. Title and Risk of Loss. and Risk of Loss
Title to and risk of loss related to the Product shall itle to and risk of loss relatetle to and risk of lostransfer from Seller to Buyer at the Delivery
Point. Seller warrants that it will deliver to Point. Seller warrantPoint. Seller warrants that Buyer the Product free and clear of all liens, security
interests, claims and encumbrances or any intereinterests, claims interests, claims and encst therein or thereto by any Person arising prior
to or at the Delivery Point. to or at the Delito or at the Delivery P
11.2Indemnities by Seller. InIndemni
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
45
Exhibit 'A'
Seller shall release, indemnify, defend, and hold harmless Buyer, its Affiliates, and its and their
directors, officers, employees, agents, and representatives against and from any and all actions,
suits, losses, costs, damages, injuries, liabilities, claims, demands, penalties and interest,
including reasonable costs and attorneys’ fees (“Claims”) resulting from, or arising out of or in
any way connected with (i) any event, circumstance, act, or incident relating to the Product
delivered under this Agreement up to and at the Delivery Point, (ii) Seller’sdevelopment, elop
permitting, construction, ownership, operation and/or maintenance of the Project, (iii) the failure ) the failufai
by Seller or the failure of the Project to comply with Applicable Laws, (iv)any Governmental Governmentalmen
Charges for which Seller is responsible hereunder, or (v) any liens, security interests, ecurity interests, y interests
encumbrances, or other adverse claims against the Product delivered hereunder made by, under, nder made by, under, made by, under,
or through Seller, in all cases including, without limitation, any Claim for or on account of m for or on account of or on account of
injury, bodily or otherwise, to or death of persons, or for damage to or destruction of property or destruction of property uction of property
belonging to Buyer, Seller, or others, excepting only such Claim to the extent caused by the to the extent caused by the extent caused
willful misconduct or gross negligence of Buyer, its Affiliates, and its and their directors, es, and its and their direct, and its and their dir
officers, employees, agents, and representatives.
11.3Indemnities by Buyer.
To the fullest extent allowed by Applicable Law, Buyer shall release, indemnify, defend, and Buyer shall release, indemBuyer shall release, i
hold harmless, Seller, its Affiliates, and its and their directors, offtheir directors, officers, emdirecicers, employees, agents, and
representatives against and from any and all Claims resulting from, or arising out of or in any Claims resulting from, or ams resultin
way connected with (i) any event, circumstance, act, or incident stance, act, or incident relatit, or incidenrelating to the Product received
by Buyer under this Agreement after the Delivery Poe Delivery Point, (ii) the failivery Point, (ii) tint, (ii) the failure by Buyer to comply with
Applicable Laws, or (iii) any Governmental Charges for which Buyer is responsible hereunder,nmental Charges for which mental Charges f
in all cases including, without limitation, animitation, any Claim for oation, any Claimy Claim for or on account of injury, bodily or
otherwise, to or death of persons, or for damage ns, or for damage to or destrufor damage to or to or destruction of property belonging to Buyer,
Seller, or others, excepting only such Claim toonly such Claim to the extsuch Claim to t the extent caused by the willful misconduct or
gross negligence of Seller, its Afr, its Affiliates, and its and filiates, and its and their directfiliates, and itors, officers, employees, agents,
and representatives.
ARTICLE 12 AR
GOVERNMENTAL CHARGES GOVGOVERN
12.1Cooperation. Cooperation. n.
Each Party shall use reasonable efforts to impch Party shall use reasonabh Party shall use lement the provisions of and to administer this
Agreement in accordance with the Agreement in accordaAgreement in accordance wintent of the Parties to minimize all taxes, so long as neither
Party is materially adversely affected by such efforts. Party is materially aParty is materially advers
12.22.22.2Governmental Charges. Government
Except as provided in Section 3.3(b), Seller shall paas provay or cause to be paid all taxes imposed by
any Governmental Authority (“Governmental Charges”) on or with respect to the Product or
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
46
Exhibit 'A'
the transaction under this Agreement arising prior to and at the Delivery Point, including, but not
limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or
interests in land for the Project. Buyer shall pay or cause to be paid applicable Governmental
Charges on or with respect to the Product or the transaction under this Agreement from the
Delivery Point. In the event Seller is required by Law or regulation to remit or pay
Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall promptly prom
reimburse Seller for such Governmental Charges. If Buyer is required by Law or regulation to regulation ion
remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may der, Buyer may Buyer ma
deduct such amounts from payments to Seller with respect to payments under the Agreement and the Agreement and eement and
shall show such deductions on invoices provided by Seller to Buyer. If Buyer elects not to f Buyer elects not to er elects not to
deduct such amounts from Seller’s payments, Seller shall promptly reimburse Buyer for such eimburse Buyer for such se Buyer for such
amounts within thirty (30) calendar days. Nothing shall obligate or cause a Party to pay or be cause a Party to pay or be e a Party to pay or be
liable to pay any Governmental Charges for which it is exempt under the Law. der the Law. Law.
ARTICLE 13
CONFIDENTIAL INFORMATION MATIONTI
13.1Confidential Information.
The Parties have and will deved will develop certain infll develop certain information, processes,
know-how, techniques and procedures concernidures concerning the oncerning ng the Projectthat they consider Proj
confidential and proprietary (together with the terms and conditions of this Agreement, ther with the terms and conwith the terms an
the “Confidential Information”). Notwithstandi). Notwithstanding the conftwithstanding theng the confidential and proprietary nature
of such Confidential Information, the Parties (each, the “mation, the Parties (each, theion, the Parties (Disclosing Party”) may make
such Confidential Information available to the other (each, a “ation available to the other (available to the Receiving Party”) subject
to the provisions of this Section 13.1.s Section tion13.113.1..
Upon receiving or learning of ConfiUpon receiving or learningceiving or dential Information, the Receiving
Party shall:
Treat such Confidential InforTreaTreat suchmationas confidential and use
reasonable care not to divulge such Confidential Information to any third reasonable care reasonable care not t
party except as required by law, subject party except aparty except as requto the restrictions set forth below;
Restrict access to such Confidential Information to only those
employees, Affiliates, subcontractors, ememployees,suppliers, vendors, and advisors whose
access is reasonably necessary for the development, construction, operation acaccess i
or maintenance of the Projectand for the purposes of this Agreement who or ma
shall be bound by the terms of this Section 13.1;sh
Use such Confidential Information solely for the purpose of
developing the Projectand for purposes of this Agreement; and
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
47
Exhibit 'A'
Upon the termination of this Agreement, destroy or return any
such Confidential Information in written or other tangible form and any
copies thereof.
The restrictions of this Section 13.1do not apply to:
Release of this Agreement to any Governmental Authority Authoho
required for obtaining any approval or making any filing pursuant to Section ant to Sectionecti
12.2,provided that each Party agrees to cooperate in good faith with the od faith with the th with th
other to maintain the confidentiality of the provisions of this Agreement by fthis Agreement by Agreement by
requesting confidential treatment with all filings to the extent appropriate and extent appropriate and t appropriate and
permitted by Applicable Law;
Information which is, or becomes, publicly known or ecomes, publicly known s, publicly kno
available other than through the action of the Receiving Party in violation of he Receiving Party in violatihe Receiving Party in viola
this Agreement;
Information which is in the possession of the Receiving Party s in the possession of te possession ohe Re
prior to receipt from the Disclosing Party or which is independently sclosing Party or which iclosing Party or wh
developed by the Receiving Party, Party, arty, providedprovidedthat the Person or Persons ththat the
developing such information have nottion have not had accesshave no had access to any Confidential
Information;
Information which is received from a third party which is not rmation whicon which is received fh is rece
known (after due inquiry) by Receiving Party to be prohibited from due inquiry) by Receivinge inquiry) by R
disclosing such information pursuant touch information pursuant tnformation pursu a contractual, fiduciary or legal
obligation; and; and
Information which is, in the reasonable written opinion of InformatiInformation whic
counsel of the Receiving Party, required to be disclosed pursuant to ounsel of the Receiving P of the Receiv
Applicable Law (including any Freedom of Information Act or Texas Public Applicable Law (iApplicable Law (including
Information Act request); Information Act nformation Act requestreprovided, however,that the Receiving Party, prior
to such disclosure, shall provide reasonable advance Noticeto the Disclosing to such disclosuto such disclosure, sh
Party of the time and scope of the intendeParty of theParty of the time ad disclosure in order to provide the
Disclosing Party an opportunity to obtain a protective order or otherwise seek DisclosingDisclosing Party
to prevent, limit the scope of, or imto prevto prevent, lipose conditions upon such disclosure.
Notwithstanding the foregoing, Seller may disclose Confidential N
Information to the Project Investors and any InformaInformation to tother financial institutions expressing an
interest in providing equity or debt finainterest in prerestncing or refinancing and/or credit support to
Seller, and the agent or trustee of any of them. Seller, and
Neither Party shall issue any press or publicity release or otherwise
release, distribute or disseminate any information, with the intent that such information
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
48
Exhibit 'A'
will be published (other than information that is, in the reasonable written opinion of
counsel to the Disclosing Party, required to be distributed or disseminated pursuant to
Applicable Law, provided that the Disclosing Party has given Notice to, and an
opportunity to prevent disclosure by, the other Party as provided in Section 13.1(c)(v)),
concerning this Agreement or the participation of the other Party in the transactions
contemplated hereby without the prior written approval of the other Party, which y, w
approval will not be unreasonably withheld, conditioned or delayed. This provision shall ovision shn s
not prevent the Parties from releasing information which is required to be disclosed in be disclosed ined
order to obtain permits, licenses, releases and other approvals relating to the Project or as o the Project or as roject or a
are necessary in order to fulfill such Party’s obligations under this Agreement.greement.ent.
The obligations of the Parties under this Section 13.1 shall remain in ction 13.11 shall remain in shall remain in
full force and effect for three (3) years following the expiration or termination of this ration or termination of thior termination
Agreement.
13.2Texas Public Information Act.
Notwithstanding any other provision of this ARTICLE 13, the Parties understand that Buyer is a 13, the Parties understand e Parties unde
governmental entity and is required to comply, and Buyer does hereby agree to comply, with the Buyer does hereby agree toBuyer does hereby agr
Texas Public Information Act (Chapter 552 of the he Texas Government Code)Texas Government Code) when responding to xas G
requests for records in its possession except whwhere the information is coere the information is considered public power the infor
utility competitive information protected by thby the provisions of the Te provisions of the Texas Government Code, provisions o
Sections 552.101, 552.104, 552.110 and/or 552.133.Disclosd/or 552.133.52.133.Disclosure ofDisclosure of information required by the
Texas Public Information Act shall not constitute a breach of any provision contained herein if not constitute a breach of anot constitute a breach
so ordered by the State of Texas Attorney General. Notwithstanding the foregoing, the Parties Attorney General. Notwithorney General. N
acknowledge and agree that this Agreement is is Agreement is confidentialement is confidconfidential, commercially sensitive information
protected from disclosure pursuant to the Texas Public Information Act. In the event that Buyer rsuant to the Texas Public It to the Texas P
is requested or required by legal or regulatory authority to disclose this any Confidential by legal or regulatory aual or regulato
Information, Buyer shall promptly notify Sellerhall promptly notify Sellepromptly notify of such request or requirement prior to
disclosure, if permitted by law, so that Seller tted by law, so that Seller mted by law, so that Semay seek an appropriate protective order. In the
event that a protective order or other remedy is notective order or other remedytive order or other obtained, Buyer agrees to furnish only that
portion of the Confidential Information that it reasonably determines, in consultation with its Confidential Information tfidential Inform
counsel, is consistent with the scope of the suconsistent with the scope ent with the scbpoena or demand, and to exercise reasonable
efforts to obtain assurance tho obtain assurance that coassurance tat confidential treatment will be accorded such Confidential
Information. mation. .
ARTICLE 14
ASSIGNMENT
14.14.14.1Successors and Assigns. Successors a
This Agreement shall inure to the benefit of AgreemeAgrand shall be binding upon the Parties and their
respective successors and assigns. es
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
49
Exhibit 'A'
14.2Assignment by Seller.
This Agreement shall not be assigned or transferred by Sellerwithout
the prior written consent of Buyer, which consent shall not be unreasonably withheld,
conditioned or delayed.
Notwithstanding the foregoing, no consent shall be required for: for:
Any assignment of this Agreement by Seller to any Projectr to any any Projecojet
Investors as collateral security for obligations under the financing documents nancing documents ng documents
entered into with such Project Investors; or
Any assignment by the Project Investors to a third party after vestors to a third party after s to a third party after
theProject Investors have exercised their foreclosure rights with respect to eclosure rights witre rights with respect h re
this Agreement or the Project.
Any assignment or transfer of this Agreement by Seller to an sfer of this Agreement by Sr of this Agreemen
Affiliate of Seller, provided that such Affiliate’s creditworthiness ch Affiliate’s creditworthinefiliate’s creditwisequal to
or better than that of Seller,and that suthat such Affiliate has the that such Affiliate hach Affiliate has the technical ability
necessary to perform all of the Seller’se Seller’s obligations under teller’s obligations u obligations under the Agreement, and
such Affiliateundertakes the legal obligations to perform all such obligations he legal obligations to perforal obliga
under the Agreement;
Any assignment or transfer of this Agreement by Seller to a assignment or transfer of tnment or transfe
Personsucceeding to all or substantiang to all or substantially allg to all or substanlly all of the assets of Seller, provided
that such Person’s creditworthiness is eqson’s creditworthiness is eq creditworthinesual to or better that that of Seller,
and that such Person has the technical abuch Person has the technicalerson has the techility necessary to perform all of the
Seller’s obligations undobligations undations under the Agreement, and such Person undertakes the er theer the Agr
legal obligations to perform all such obligations under the Agreement.obligations to perform all suns to perfo
Buyeracknowledges that upon an evenBuyerBuyeracknowledges acknowlt of default under any financing
documents relating to the Project, any of thnts relating to the relating to thProjectPro,e Project Investors may(but shall not be
obligated to) assume, or cause its designee ated to) assume, or cause itso) assume, or cauor a new lessee or purchaser of the Projectto
assume, all of the interests, rights and obligume, all of the interests, rigof the interations of Seller thereafter arising under this
Agreement,provided that, regardlAgreementement,,provided that, reprovided tess of whether any such Project Investoror its designee
assumes all of the interests, rights and obligatassumes all of the intereumes all of the iions of Seller thereafter arising under this
Agreement, BuyerAgreemenAgreement, BuyerBu’s interests, rights and obligations under this Agreement will remain in ’s in
full force and effect.full force and full force and effect
If the rights and interests of Seller in this Agreement shall be assumed,
sold or transferred as herein provided, and the assold or transuming party shall agree in writing to be
bound by and to assume, the terbobound bms and conditions hereof and any and all obligations to
Buyerarising or accruing hereunder from and Buyeafter the date of such assumption, then
Seller shall be released and discharged from the terms and conditions hereof and each
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
50
Exhibit 'A'
such obligation hereunder from and after such date, and Buyer shall continue this
Agreement with the assuming party as if such Person had been named as Seller under this
Agreement; provided, however, that if any such Person assumes this Agreement as
provided herein, Buyer acknowledges and agrees that such Persons shall not be
personally liable for the performance of such obligations hereunder except to the extent
of the total interest of the Project Investors in the Project. Notwithstanding any such any
assumption by any of the Project Investors or a designee thereof, Seller shall not be shall not not
released and discharged from and shall remain liable for any and all obligations to Buyer ations to BuyerBuy
arising or accruing hereunder prior to such assumption.
The provisions of this Section 14.2 are for the benefit of the Project benefit of the Project fit of the Project
Investors as well as the Parties hereto, and shall be enforceable by the Project Investors as by the Project Investors as roject Investors as
express third-party beneficiaries hereof. Buyer hereby agrees that none of the Project ees that none of the Projechat none of the P
Investors, nor any bondholder or participant for whom they may act or any trustee acting ey may act or any trustee actact or any trustee
on their behalf, shall be obligated to perform any obligation or be deemed to incur any igation or be deemed to incgation or be deemed to inc
liability or obligation provided in this Agreement on the part of Seller or shall have any n the part of Seller or shall the part of Seller or
obligation or liability to Buyer with respect to this Agreement except to the extent any of s Agreement except to the egreement excep
them becomes a party hereto pursuant to this Section 14.2.ection 14.24.2..
14.3Assignment by Buyer.
ThisAgreement shall not be assigned or transferred by Buyer without hall not be assigned or tranbe assigned
the prior written consent of Seller, which consent shall not be unreasonably withheld, ler, which consent shall nowhich consent sha
conditioned or delayed.
Notwithstanding the foregoing, no consent shall be required for: hstanding the foregoing, no ing the foregoin
Any assignmentor transfer of this Agreement by Buyerto an Any assignmenAny assignmentor t
Affiliate of iate of Buyer, provided that such Affiliate’s creditworthiness Buyer, provided thatuyer, proviisequal to
or better than that of Buyer,and that sur better than that of Buyerer than that of Buch Affiliate has the technical ability
necessary to perform all of the Buyer’s obligationnecessary to perfornecessary to perform all ofs under the Agreement, and
such Affiliate undertakes the legal obligations to perform all such obligations such Affiliate undertakeuch Affiliate und
under the Agreement;under the Agreeunder the Agreement
Any assignment or transfer of this Agreement by Buyerto a A
Person succeeding to all or substantiaPersonPerson succelly all of the assets of Buyer, provided
that such Person’s creditworthiness is equal to or better that that of thathat such Buyer,
and that such Person has the technical abanand thaility necessary to perform all of the
Buyer’s obligations under the AgreemenBuyt, and such Person undertakes the
legal obligations to perform all such obligations under the Agreement.le
If the rights and interests of Buyer in this Agreement shall be assumed,
sold or transferred as herein provided, and the asold osuming party shall agree in writing to be
bound by and to assume, the terms and conditions hereof and any and all obligations to
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
51
Exhibit 'A'
Seller arising or accruing hereunder from and after the date of such assumption, then
Buyer shall be released and discharged from the terms and conditions hereof and each
such obligation hereunder from and after such date, and Seller shall continue this
Agreement with the assuming party as if such Person had been named as Buyer under
this Agreement.
14.4Collateral Assignment.
Seller, without approval of Buyer, may, by security, charge or urity, charge or charge o
otherwise encumber its interest under this Agreement for the purposes of financing the ses of finffinancing the ancing the
development, construction and/or operation of the Projectctand the Seller’s and the Seller’s d the Seller’s
Interconnection Facilities.
Promptly after making such encumbrance, Seller shall notify Buyerince, Seller shall notify er shall notify BuyerB
writing of the name, address, and telephone and facsimile numbers of each Project csimile numbers of eacsimile numbers of chchPP
Investorto which Seller’s interest under this Agreement has been encumbered. Such ement has been encumberedment has been encum
Noticeshall include the names of the account managers or other representatives of the anagers or other representagers or other r
Project Investors to whom all written and telephonic communications may beaddressed. honic communications may bommunication
After giving Buyersuch initial Notice, Seller shall promptly give Buyerinitial tialNoticeN, Seller shall pll
Noticeof any change in the information provided in the initial Noticeor any revised ion provided in the initial rovided
Notice.
If Seller encumbers its interest under this Agreement as permitted by umbers its interest under ths its interest und
this Section 14.4, the following provisions shall apply: ing provisions shall apply: g provisions shall
The Parties, except as provided by the terms of this The Parties, excThe Parties, except
Agreement, shall not modify or cancelment, shall not modify or chall not modify this Agreement without the prior
written consent of the Project Investors;en consent of the nt oProject InvPr
The Project Investors or their designees shall have the right, ThTheProject
but not the obligation, to perform any actbut not the obligatibut not the obligation, to required to be performed by Seller
under this Agreement to prevent or cureunder this Agreunder this Agreement an Event of Default by Seller and
such act performed by the Project Invesuch act psuch act performestors or their designees shall be as
effective to prevent or cure an Event of Default as if done by Seller,provided effective teffective to prev
that, if any such Project Investoror its designee elects to perform any act that, if that, if any s
required to be performed by Seller undreqrequired toer this Agreement to prevent or cure
an Event of Default by Seller, Buyerwillanan Even not be deemed to have waived or
relinquished its rights and remedies as provided in this Agreement;relin
Buyershall,upon request by Seller,execute statements
certifying that this Agreement is unmodified (or, modified and stating the
nature of the modification), in full force and effect and the absence or
existence (and the nature thereof) of Events of Default hereunder by Seller
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
52
Exhibit 'A'
and documents of consent to such assignment to the encumbrance and any
assignment to such Project Investors; and
Upon the receipt of a written request from Seller or any
Project Investor,Buyershall execute, or arrange for the delivery of, such
certificates, opinions and other documents as may be reasonably necessary in ess
order for Seller to consummate any financing or refinancing of the Projector eProjectec
any part thereof and will enter into reasonable agreements with such Project h such Projectroje
Investor, which agreements will grant certainrights to the Project InvestorsProject Investorct Investors
as more fully developed and described in such documents, including (a) this ts, including (a) this cluding (a) this
Agreement shall not be terminated (except for termination pursuant to the nation pursuant to the n pursuant to the
terms of this Agreement) without the consent of Project Investor, which Project Investort Investor, which , which
consent is not to be unreasonably withheld, conditionedor delayed, (b) conditionedtionedor delayed, (bor delaye
Project Investors shall be given notice of, and the opportunity to cure as and the opportunity to cureopportunity to
provided in Section 14.4(d)(ii), any breach or default of this Agreement by h or default of this Agreemh or default of this Agreem
Seller, (c) that if the Project Investor forecloses, take a deed in lieu of forecloses, take a deed iforecloses, take a d
foreclosure or otherwise exercise its remedies pursuant to any security its remedies pursuant to aemedies pursu
documents, then (i) Buyer shall, at Project Investorat Project Investorect Investor’s request, continue to ’s’s reque
perform all of its obligations hereundeereunder, and Project Investreunder, and Project Ir, and Project Investor or its nominee
may perform in the place of Seller, and may assign thSeller, and may assign this A, andis Agreement to another
Person in place of Seller, (ii) Project(ii) Project Investor shall Project Inv Investor shall have no liability under
this Agreement except during the period of such Project Investorduring the period of such Pre period of s’s ownership
or operation of the Project and (iii) that Project and (iii) that Buyerct and (iii) that Buyer shall accept performance in
accordance with this Agreement by Project Investor or its nominee, and (d) this Agreement by Project his Agreement by
that Buyer shall make representations and warranties to Project Investor as all make representations andmake representati
Project Investor may reasonably request with regard to (1) Buyerestor may reasonably requesmay reasonably re’s existence,
(2) Buyerr’s authority to execute, deliver a’s authority to execute, delthority to execund perform this Agreement, (3) the
binding nature of the document evidencing Buyerng nature of the document eve of the docum’s consent to assignment to
Project Investor and this Agreement oject Investor and this AgreInvestor and thison Buyer and (4) receipt of regulatory
approvals by Buyer with respect to approvals by Buyer wapprovals by Buyer with resits execution and performance under this
Agreement. Agreement. Agreement.
ARTICLE 15
FORCE MAJEURE
15.11Force Majeure Events. Force MajeurForce Majeure Events.
To the extent either Party is prevented by a Force Majeure Event from carrying out, in whole or To the eTo the extent either Partyxtent either
part, its obligations under this Agreement and part, its obligatipart, its obligations unsuch Party gives Notice and details of the Force
Majeure Event to the other Party as detailed beMajeuMajeure Event to tlow, then, the Party impacted by the Force
Majeure Event shall be excused from the performaeure Event sheure nce of its obligations to the extent impacted.
As soon as practicable after commn as praencement of a Force Majeure Event, the non-performing Party
shall provide the other Party with oral notice ofi the Force Majeure Event, and within two (2)
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
53
Exhibit 'A'
weeks of the commencement of a Force Majeure Event, the non-performing Party shall provide
the other Party with Notice in the form of a letter describing in detail the particulars of the
occurrence giving rise to the Force Majeure Event claim. Upon mutual agreement by the Parties,
Seller may substitute Product from other similar sources for the output of the Project during an
outage resulting from aForce Majeure Event. The suspension of performance due to a claim of a
Force Majeure Event must be of no greater scope and of no longer duration than is required by quir
the Force Majeure Event. Buyer shall not be required to make any payments for any Product that Product thct
Seller fails to schedule, deliver or provide as a result of aForce Majeure Event during the term of ing the term ofrm
suchForce Majeure Event except where both Parties mutually agree to a substitute Product. This ute Product. This oduct. Thi
Agreement may be terminated by either Party with no further obligation to the other Party if such he other Party if such er Party if such
Force Majeure Event prevents the performance of a material portion of the obligations hereunder e obligations hereunder gations hereunder
and such Force Majeure Event is not resolved within twelve (12) months after the (12) months after the months after the
commencement of such Force Majeure Event; provided,however, if Seller is the non-performing f Seller is the non-performiner is the non-perfo
Party, Seller shall have up to ninety (90) days following such Force Majeure Event to obtain a orce Majeure Event to obtarce Majeure Event to o
report from an independent, third party engineer stating whether the Projecher the Project is capable ofher the Project is capable ot is capable of being
repaired or replaced within twenty-four (24) additional months or less from the date of the report nths or less from the date of hs or less from the da
and provide Buyer a copy of the engineer’s report, at no cost to Buyer. If such engineer’s report o cost to Buyer. If such engito Buyer. If s
concludes that the Project is capable of being repaired or replaced within such twenty-four (24) d or replaced within such twlaced within
month period and Seller undertakes and continues such repair or resuch repair or replacement wuch repair or replacemplacement with due diligence,
then Buyer shall not have the right to terminatete this Agreement pursuant this Agreement pursuant to this Section 15.1s Agr
until the expiration of the period deemed necesnecessary by the engineer’sary by the engineer’s report (not to exceed ary by the
twenty-four (24) months), after which time, Bume, Buyer may terminate uyer may terminate unless r may termithe Project has been
repaired or replaced, as applicable, and the Sellerd the Seller has resumed andSeller has resume has resumed and is satisfying its performance
obligations under this Agreement.
ARTICLE 16 ARTICLEARTICLE 16
LIMITATIONS ON LIABILITY LIMITATIONS ON LIAMITATIONS O
16.1Disclaimer of Warranties. Warranties. anties
EXCEPT AS SET FORTH HEREIN, THERE IST FORTH HEREIN, THEREFORTH HEREIN, NO WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PUS FOR A PARTICULAROR A PARTICRPOSE, AND ANY AND ALL IMPLIED
WARRANTIES ARE DISCLAIMED. TIES ARE DISCLAIMED. RE DISCLAIM
16.2Limitations on Liability. Limitations on Liability. itations on Liabi
TO THE EXTENT ALLOWED BY APPLICABLTO THE EXTENT ATO THE EXTENT ALLOWE LAW, THE PARTIES CONFIRM THAT
THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS THE EXPRESS RTHE EXPRESS REME
AGREEMENT SATISFY THE ESSENTIAL PUAGREEMENTAGREEMENT SATISRPOSES HEREOF. FOR BREACH OF ANY
PROVISION FOR WHICH AN EXPRESS REROVISION FOR ROVMEDY OR MEASURE OF DAMAGES IS
PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE OVIDED, SUOVID
SOLE AND EXCLUSIVE REMEDY, THE OBLIGORAND EA’S LIABILITY SHALL BE LIMITED
AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT FO
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
54
Exhibit 'A'
LAW OR IN EQUITY ARE WAIVED, UNLESS THE PROVISION IN QUESTION
PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES
THAT MAY BE AVAILABLE. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATION IN
RESPECT OF THIRD PARTY CLAIMS OR AS OTHERWISE EXPRESSLY HEREIN
PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR FIT
OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR TORT O
CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. UNLESS E. UNLESSLE
EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF ARTICLE NS OF ARTICLE ARTICLE
11, IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED HEREIN IMPOSED EIN IMPOSED
ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE T REGARD TO THE GARD TO THE
CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY NEGLIGENCE OF ANY GENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR T OR CONCURRENT, ORCONCURREN
ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID ES REQUIRED TO BE PAQUIRED TO BE
HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE ACKNOWLEDGE THATACKNOWLEDGE THAT
DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE DETERMINE, OR OTHDETERMINE, OR
OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES ONVENIENT AND THE ENIENT AND
CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF REASONABLE APPROXNABLE AP
THE HARM OR LOSS.
ARTICLE 17 TICLEE 17 17
DISPUTE RESOLUTION TE RESOLUTION OLUTION
17.1Intent of the Parties.
Except as provided in the next sentence, the sole sentence, the sole proceduree, the sole procprocedure to resolve any claim arising out of or
relating to this Agreement or any related agreement or any related agreement y related agree(a “Dispute”) is the dispute resolution
procedure set forth in this ARTICLE 17. Either ARTICLE 17LE. Either PartyEitherParty may seek a preliminary injunction or other
provisional judicial remedy if such action is necemedy if such action is neceif such action issary to prevent irreparable harm or preserve
the status quo, in which case both Parties nonetheleshich case both Parties nonehich case both Partiess will continue to pursue resolution of the
Dispute by means of the dispute resolution s of the dispute resolution prof the dispute resoluprocedure set forth in this ARTICLE 17.
17.2Management Negotiations. Management Negotiations. nt Negotiat
The Parties will attempt in good faith to resolve any Disputeby prompt The
negotiations between each Partynegotiations negotiations betwe’s authorized representativedesignated in writing as a
representative of the Party (each a representrepresentative o“Manager”). Either Manager may, by Notice to the
other Party,request a meeting to initiate negotiother Party,ations to be held within ten (10) Business
Days of the other PartyDDays of t’s receipt of such request, at a mutually agreed time and place
(either in person or telephonically). If the mat(e(either ter is not resolved within fifteen (15)
Business Days of their first meeting (us“Initial Negotiation End Date”), the Managers
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
55
Exhibit 'A'
shall refer the matter to the designated senior officers of their respective companies that
have authority to settle the dispute (“Executives”). Within five (5) Business Days of the
Initial Negotiation End Date (“Referral Date”), each Party shall provide one another
Notice confirming the referral and identifying the name and title of the Executive who
will represent the Party.
Within five (5) Business Days of the Referral Date, the Executives shall cutives shs s
establish a mutually acceptable location and date, which date may not be later thanthirty ater thanthirtythir
(30) days afterthe Referral Date, tomeet. After the initial meeting date, the Executives e, the Executives Executive
shall meet, as often as they reasonably deem necessary, to exchange relevant information relevant information ant information
and to attempt to resolve the dispute.
All communication and writing exchanged between the Parties in ed between the Parties inetween the Part
connectionwith these negotiations shall be confidential and shall not be used or referred nd shall not be used or referl not be used or r
to in any subsequent binding adjudicatory process between the Parties.een the Parties.een the Partie
If the matter is not resolved within forty-five (45) days of the Referral hin fortyfo-five (45) days of t(45
Date, or if the Party receiving the Notice to meet, pursuant to Section 17.2(a) above, meet, pursuant to pursuant to Section S
refuses or does not meet within the ten (10) Business Day period specified in Section 0) Business Day period spe0) Business Day perio
17.2(a) above, and subject to Sections 16.2,19.72,19.79.7 and 19.8 of this Agreement, either Party a and 19.8 of this Agr
may pursue all remedies available to it at law or in equity. at law or in equity. w or in equ
17.3Specific Performance and Injunctive Relief. ctive Relief. Relief.
Each Party shall be entitled to seek a decree coek a decree compelling speca decree compellmpelling specific performance with respect to,
and shall be entitled, without the necessity of e necessity of filing any bonssity of filing anfiling any bond, to seek the restraint by injunction
of, any actual or threatened breach of any materiabreach of any material obch of any matl obligation of the other Party under this
Agreement. The Parties in any action for specn any action for specific pection for specifific performance or restraint by injunction agree
that they shall each request that all expenses inquest that all expenses incuthat all expencurred in such proceeding, including, but not
limited to, reasonable counsel fees, be apportionee counsel fees, be apportionensel fees, be appod in the final decision based upon the respective
merits of the positions of the Parties. ions of the Parties. ons of the Parties.
ARTICLE 18
NOTICES
18.1Notices. Notices. ice
Whenever this Agreement requires or permits delivery of a Whenever this AgreWhenever this Agreement“Notice” (or requires a Party to
“notify”), the Party with such righ“notify”), the Pa“notify”), the Party witt or obligation shall provide a written communication in the
manner specified in herein and to the addressemanner specifiemanner specified in hs set forth below; provided, however, that Notices
of Outages or other SchedulinOutages or otOutag or dispatch information or requests, shall be provided in
accordance with the terms set forth in the relevandance witdant section of this Agreement. Invoices may be
sent by facsimile or e-mail. A Notice sent by acsifacsimile transmission or e-mail will be recognized
and shall be deemed received on the Business Day on which such Notice was transmitted if
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
56
Exhibit 'A'
received before 5:00 p.m. (and if received after 5:00 p.m., on the next Business Day) and a
Notice of overnight mail or courier shall be deemed to have been received two (2) Business Days
after it was sent or such earlier time as is confirmed by the receiving Party. Each Party shall
provide Notice to the other Party of the persons authorized to nominate and/or agree to a
Schedule or Dispatch Order for the delivery or acceptance of the Product or make other Notices
on behalf of such Party and specify the scope of their individual authority and responsibilities, sibi
and may change its designation of such persons from time to time in its sole discretion by iscretionon
providing Notice.
If to Seller: Bluebell Solar II, LLC
c/o NextEra Energy Resources, LLC
700 Universe Boulevard
Juno Beach, FL 33408
Attn: John DiDonato, Vice President
Telephone: (561) 691-7232
Facsimile: (561) 691-7307
If to Buyer: Denton Municipal Electric
1659 Spencer Road
Denton, TX 76205
Attn: General Manager ger
Telephone: (940) 349-8487 40) 349-8487 49-8487
Facsimile: (940) 349-7334 (940) 349-7334 940) 349-7334
With a copy to: City Attorney orney
215 E. McKinney Street . McKinney Street Kinney Street
Denton City Hall nton City Hall y H
Denton, Texas 76201 Denton, Texas 76201 on, Texas 76201
Telephone: (940) 349-8333 Telephone: (940) 349-Telephone: (940)
Facsimile: (940) 382-7923 Facsimile: (940) 3Facsimile: (9
ARTICLE 19
MISCELLANEOUS
19.11Effectiveness of Agreement; Survival. Effectiveness oEffectiveness of Agreem
This Agreement shall be in full force and effect, This Agreement shaThis Agreement shall be ienforceable and binding in all respects as of the
Effective Date until the conclusion of the Term or Effective Date uEffective Date until thearlier termination pursuant to the terms of
this Agreement; provided however, that this Agreemenhis Agreement; prohis Agt shall remain in effect until (i) the Parties
have fulfilled all obligations under this Agreemene fulfilled all e fulft, including payment in full of amounts due for
the Product delivered prior to the end of the oduct ddTerm, the Settlement Amount, indemnification
payments or other damages (whether directly or indirectly such as through set-off or netting) and
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
57
Exhibit 'A'
(ii) the undrawn portion of the Project Development Security or Delivery Term Security, as
applicable, is released and/or returned as applicable (if any is due). All indemnity rights shall
survive the termination or expiration of this Agreement for the longer of twelve (12) months or
the expiration of the statute of limitations period of the claim underlying the indemnity
obligation.Notwithstanding any provisions herein to the contrary, the obligations set forth in
Sections 13.1 and ARTICLE 16, the indemnity obligations set forth in ARTICLE 11, and the , an
limitations on liabilities set forth herein shall survive (in full force) the expiration or termination terminatina
of this Agreement.
19.2Audits.
Each Party has the right, at its sole expense and during normal working hours, to examine the ing hours, to examine the rs, to examine the
records of the other Party to the extent reasonably necessary to verify the accuracy of any verify the accuracy of anyfy the accuracy
statement, charge or computation made pursuant to this Agreement. If any such examination ment. If any such examinatf any such exam
reveals any inaccuracy in any statement, the necessary adjustments in such statement and the tments in such statement atments in such statement a
payments thereof will be made promptly and shall bear interest calculated at the Interest Rate nterest calculated at the Inteerest calculated at th
from the date the overpayment or underpayment was made until paid; provided, however, that no de until paid; provided, howntil paid; provi
adjustment for any statement or payment will be made unless objection to the accuracy thereof de unless objection to the acs objection to
was made prior to the lapse of twelve (12) months from the rendition therfrom the rendition thereof, from the rendition theeof, and thereafter any
objection shall be deemed waived except to the extent any misinformation was from a third party extent any misinformation wany
not affiliated with any Party and such third partarty corrects its informationy corrects its information after such twelve (12)-orrects its
month period.
19.3Amendments.
This Agreement shall not be modified nor amenodified nor amended unless snor amended unded unless such modification or amendment shall
be in writing and signed by authorized representatives of both Parties. authorized representatives ofized representat
19.4Waivers.
Failure to enforce any right or obligation by any e any right or obligation bany right or obligParty with respect to any matter arising in
connection with this Agreement shall not constitute a waiver as to that matter nor to any other th this Agreement shall not s Agreement sha
matter. Any waiver by any Party of its rights withy waiver by any Party of itser by any Party respect to a default under this Agreement or
with respect to any other matters arising in connectipect to any other matters ariy other matton with this Agreement must be in writing.
Such waiver shall not be deemed a waiver with waiver shall not be deemed ar shall not be deerespect to any subsequent default or other matter.
19.59.59.5Severability. Severability. Severability.
If any of the terms of this Agreement are finally If any of the termIf any of the terms of thheld or determined to be invalid, illegal or void,
all other terms of the Agreement shall remain in effect; ll other terms of thll othprovided that the Parties shall enter into
negotiations concerning the terms affectedotiations conotiatio by such decision for the purpose of achieving
conformity with requirements of any Applicamity wimible Law and the intent of the Parties.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
58
Exhibit 'A'
19.6Standard of Review.
Absent the agreement of the Parties to the proposed change, the standard of review for changes
to this Agreement proposed by a Party, a Person or the Federal Energy Regulatory Commission
acting sua sponte shall be the “public interest”application of the “just and reasonable” standard
of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 U.S
(1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956), as (1956),6)
clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 nohomish, 554h, 5
U.S. 527 (2008) (the “Mobile-Sierra” doctrine).
19.7Governing Law.
THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES UTIES OF THE PARTIESS OF THE PAR
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND TRUED, ENFORCED AND, ENFORCED
PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,OF THE STATE OF TEOF THE STATE OF TE
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE EXTENT TS OF LAW. TO THE ES OF LAW. TO T
ENFORCEABLE AT SUCH TIME, EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO AIVES ITS RESPECTIVE ES ITS RESP
ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN ITIGATION ARISING UNTION ARISIN
CONNECTION WITH THIS AGREEMENT.
This Agreement was executed in the State in the State of Texas and e State ofof Texas and must in all respects be
governed by, interpreted, construed, and shall be exclusively enforced in accordance with the shall be exclusively enforceexclusively
laws of the State of Texas. It is agreed that ththat the provisions and oblighe provisions ane provisions and obligations of this Agreement are
performable in the City of Denton, Denton County,Denton County, Texas. VDenton County, Tex Texas. Venue shall lie for any lawsuit
dealing with this Agreement in the appropriate fedee appropriate federal court inpropriate federal ral court in Texas, or, if the federal courts do
not have jurisdiction, in the State District te District Courts in and for Dict Courts in anCourts in and for Denton County, Texas.
19.8Waiver of Trial by Jury. by Jury. ury.
EACH OF THE PARTIES HERETO HEREE PARTIES HERETO HEPARTIES HERETBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT EITHLLY WAIVES THE RIGHWAIVES THEER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, IN RESPECT OF ANY LITSPECT OF ANY
UNDER OR IN CONNECTION WITH THOR IN CONNECTION WCONNECTIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED INTEMPLATED TO BE EXLATED TO B CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL URSE OF CONDUCT, COURSE OF COND
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A OR WRITTEN) OROR WRITTEN) OR ACT
MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. MATERIAL INDUCMATERIAL INDUCEME
19.99.99.9Attorneys’ Fees.Attorneys’ F
In any proceeding brought to enforce this Agreproceedpement or because of the breach by any Party of
any covenant or condition herein nacontained, the prevailing Party shall be entitled to reasonable
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
59
Exhibit 'A'
attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court
costs and any and all other costs recoverable in said action.
19.10No Third-Party Beneficiaries.
Except as set forth in Sections 14.1, 14.4 and ARTICLE 16, this Agreement is intended solely ed
for the benefit of the Parties hereto and nothing contained herein shall be construed to create any o create ate
duty to, or standard of care with reference to, or any liability to, or any benefit for, any Person or, any Personers
not a Party to this Agreement.
19.11No Agency.
This Agreement is not intended, and shall not be construed, to create any association, joint create any association, jointany association
venture, agency relationship or partnership between the Parties or r to impose any such obligatto impose any such obligation pose any such ob
or liability upon either Party. Neither Party shall have any right, power or authority to enter into ht, power or authority to enteht, power or authority to ent
any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, r representative of, or otherwrepresentative of, or o
the other Party.
19.12Cooperation.
The Parties acknowledge that they are entering into a long-term arrangement in which the ring into a long-term arrannto a lo
cooperation of both of them will be required. red. If, during the Term, cIf, during the Term, changes in the operations, during the T
facilities or methods of either Party will materialmaterially benefit a Party wrially benefit a Paly benefit a Party without detriment to the other
Party, the Parties commit to each other to makher to make Commercially Rmake Commercie Commercially Reasonable Efforts to cooperate
and assist each other in making such change. ch change. change.
19.13Further Assurances.
Upon the receipt of a written rewritten request from the ten request froquest from the other Party, each Party shall execute such
additional documents, instruments and assurants, instruments and assuranstruments and aces and take such additional actions as are
reasonably necessary and desirable to carry out thary and desirable to carry ory and desirable to e terms and intent hereof. Neither Party shall
unreasonably withhold, condition or delay its compliance with any reasonable request made withhold, condition or delaold, condition or
pursuant to this Section 19.13.this Section ction19.1319.1.
19.14Captions; Construction. Captions; Construction. tions; Constructi
All indexes, titles, subject headings, section tiAll indexes, titles, subAll indexes, titles, subject hetles, and similar items are provided for the purpose
of reference and convenience and are not intended toof reference and conof reference and convenie affect the meaning of the content or scope
of this Agreement. Any term and provision of this Agreement shall be construed simply of this Agreemof this Agreement. A
according to its fair meaning and not strictly for or against any Party. according to itsaccording to its fair m
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
60
Exhibit 'A'
19.15Entire Agreement.
This Agreement shall supersede all other prior and contemporaneous understandings or
agreements, both written and oral, between the Parties relating to the subject matter of this
Agreement.
19.16Forward Contract.
The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within contract” within act” withi
the meaning of the United States Bankruptcy Code.
19.17Counterparts.
This Agreement may be executed in several counterparts, each of which shall be an original and fwhich shall be an original ashall be an origi
all of which together shall constitute but one and the same instrument. ument. ument.
\[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ALLY LEFT BLANK LY LEFT BL––
SIGNATURES APPEAR ON FOLLOWING PAGE\] OLLOWING PAGE\] WING PAGE
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
61
Exhibit 'A'
Exhibit 'A'
EXHIBIT A
PRODUCT CONTRACT PRICE
PERIODPRODUCT CONTRACT PRICE($/MWh)($/MWh
From and including the Commercial Operation $20.9999
Date through the remainder of the Delivery
Term
A-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT B
DESCRIPTION OF PROJECT
Seller intends to build, own and operate a 100 MW photovoltaic solar energy generation facility on faciliil
on a site located in Sterling County, Texas located in Sterling County, Texas. The Project will Project will will
generate electrical power that will be sold wholesale.
As presently planned, the Project will consist of:
Solar equipment
Electrical transformation equipment located at the Project ect ect
An underground and aboveground electric cable collection system to carry electricity to collection system to carry election system to
the substation
An underground and aboveground fiber-optic data collection systemr-optic data collection systemc data col
Permanent meteorological (“MET”) towerET”) towertower(s)(s)(s)
A temporary construction lay down arean lay down areaown area
Maintenance/field office(s) d office(s) )
Solar Under Wind Metering r Wind Metering r Wind Metering
B-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
o All quantities of Energy purchased hereunder will be adjusted to account for
electrical losses between the Project and the Delivery Point so that the purchased
amount reflects the net amount for each wind and solar customer at the Delivery
Point. Seller will install two or more programmable meters, such as PowerLogic
ION8650 or Landis & Gyr E 850 Maxsys, to separate the wind and solar
generation and account for each separately.
Nothing in this Agreement or Exhibit B is intended to either (i) limit the right of Seller to make of Seller to make ller to make
any changes to the Project it determines to undertake, or (ii) grant any rights to Buyer regarding ts to Buyer regardingBuyer regarding
the description, nature or components of the Project.
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
2
Exhibit 'A'
EXHIBIT C
DESCRIPTION OF DELIVERY POINT AND ONE-LINE DIAGRAM
/ƚƓĭĻƦƷǒğƌ LƓƷĻƩĭƚƓƓĻĭƷźƚƓ 5źğŭƩğƒ
.ƌǒĻĬĻƌƌ {ƚƌğƩ LL
\[/w!ƭ 5źǝźķĻ
345kV Substation
MTMT
Point of Interconnection PoPoint of Interconne
& Metering& Meterin
Main TransformerMain T
345/34.5kV3
S1S1S2
MM
WWW
MM
Bluebell
Bluebell
Solar - I
Solar - II
30 MW
100 MW
Capricorn Capr
Ridge 4
Windfarm
\[TO BE UPDATED BY SELLER WHEN APPLICABLE\]
C-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT D
GEP DAMAGES CALCULATION
In accordance with the provisions in Section 3.21(c), GEP Damages means the liquidated ated
damages payment due by Seller to Buyer, calculated as follows:
\[(A –B) X (C –D)\]
Where:
A = the Guaranteed Energy Production for the Performance Measurement Period, in Measurement Period, in urement Period,
MWh
B = Sum of Delivered Energy plus Deemed Delivered Energy, if any, over the red Energy, if any, over the Energy, if any, ove
Performance Measurement Period, in MWh
C = Replacement price for the Performance Measurement Period, in $/MWh, which is the e Measurement Period, in $/MMeasurement Period,
sum of (a) the simple average of the RTSPP for all the fifteen (15) minute settlement SPP for all the fifteen (15) mor all th
periodsin the Performance Measurement Period, as published by ERCOT,at the Delivery ment Period, as published by riod, as pub
Point pricing node
D = the Contract Price
In no event shall GEP Damages exceed $200/MWh. If the difference between C and D is s exceed $200/MWh. If the eed $200/MWh. I
negative, no GEP Damages shall be pashall be payable from Sellerbe payable fromyable from Seller to Buyer.
D-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT E
FORM OF GUARANTY
THIS GUARANTY (this “Guaranty”), dated as of ___, 2018,(the “Effective Date”), is
made by NEXTERA ENERGY CAPITAL HOLDINGS, INC. (“Guarantor”), in favor of the
CITY OF DENTON, TEXAS, aTexas home-rule municipal corporation in the State of Texas of
(“Counterparty”).
RECITALS:
A.WHEREAS, Counterparty and Guarantor’s indirect, wholly-owned subsidiary Bluebell ned subsidiary Bluebell ubsidiary Bluebell
Solar II, LLC (“Obligor”), have entered into, or concurrently herewith are entering into, herewith are entering into, are entering into,
that certain Power Purchase Agreement dated as of ____, 2018 (together, the ____, 2018, 2018 (together, th (togethe
“Agreement”); and
B. WHEREAS, Guarantor will directly or indirectly benefit from the transaction to be ybenefit from the transactibenefit from the tra
entered into between Obligor and Counterparty pursuant to the Agreement. ursuant to the Agreement. ant to the Agre
NOW THEREFORE, in consideration of the foregoing premises and as an inducement the foregoing premises and e foregoing premises
for Counterparty’s execution, delivery and performance of the Agreement, and for other good formance of the Agreementance o
and valuable consideration, the receipt and d sufficiency of which is sufficiency of which is hereby acknowledged, iciency of
Guarantor hereby agrees for the benefit of Counterparty as follows: Counterparty as follows: arty as follo
1.GUARANTY. Subject to the terms and provisions hereof, Guarantor hereby absolutely he terms and provisions hereterms and provi
and irrevocably guarantees the timely payment when due of all obligations owing by Obligor to mely payment when due of payment when d
Counterparty arising pursuant to the Agrent to the Agreement on the Agreemenement on or after the Effective Date (the
“Obligations”). This Guaranty shall constitute a guarantee of payment and not of collection. ranty shall constitute a guarshall constitute
The liability of Guarantor under this Guaranty r under this Guaranty shall bhis Guaranshall be subject to the following limitations:
(a) Notwithstanding anything herein or in the Agreement to the contrary, the maximum nding anything herein or inding anything herein
aggregate obligation and liability of Guarane obligation and liability ofbligation and liabiltor under this Guaranty, and the maximum
recovery from Guarantor under this Guarantyery from Guarantor under tom Guarantor un, shall in no event exceed Seven Million
Five Hundred Thousand U.S. Dollars (U.S. $7,500,000) (the Hundred Thousand U.S.red Thousae “Maximum Recovery
AmountAmountnt”)”)); provided, however, that, upon and after the Commercial Operation Date (as ; provided, ; provided, howev
defined in the Agreement), the Maximum Rdefined in the Agreemenned in the Agreecovery Amount shall be reduced to Four
Million Five Hundred Thousand U.S. Dollars (U.S. $4,500,000). Million Five HMillion Five Hundred
(b)(b(b) The obligation and liability of Guarantor under this Guaranty is specifically limited to The Theobligation aobli
payments expressly required to be made undpayments expaymenter the Agreement, as well as costs of
collection and enforcement of this Guaranty collection (including attorney’s fees) to the extent
reasonably and actually incurred by the Crereasonabounterparty (subject in all instances, to the
limitations imposed by the Maximum Recoveimitary Amount as specified in Section 1(a)
above). In no event, however, shall Guarantor be liable for or obligated to pay any
E-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
consequential, indirect, incidental, lost profit, special, exemplary, punitive, equitable or
tort damages.
2.DEMANDS AND PAYMENT.
(a) If Obligor fails to pay any Obligation to Counterparty when such Obligation is due and du
owing under the Agreement (an “Overdue Obligation”), Counterparty may present a ay presensen
written demand to Guarantor calling for Guarantor’s payment of such Overdue such Overdueerd
Obligation pursuant to this Guaranty (a “Payment Demand”).
(b)Guarantor’s obligation hereunder to pay any particular Overdue Obligationerdue ObligationObligation(s) to (s) to to
Counterparty is conditioned upon Guarantor’s receipt of a Payment Demand from Payment Demand from nt Demand from
Counterparty satisfying the following requirements: (i) such Payment Demand must uch Payment Demand musPayment Demand
identify the specific Overdue Obligation(s) covered by such demand, the specific date(s) uch demand, the specific dath demand, the specific
upon which such Overdue Obligation(s) became due and owing under the Agreement, and owing under the Agreand owing under the Agre
and the specific provision(s) of the Agreement pursuant to which such Overdue pursuant to which such pursuant to which
Obligation(s) became due and owing; (ii) such Payment Demand must be delivered to Payment Demand must be ment Demand
Guarantor in accordance with Section 9 below; and (iii) the specific Overdue below; and (iii) the speand (iii) th
Obligation(s) addressed by such Payment Demand must remain due and unpaid at the Demand must remain due Demand must remain
time of such delivery to Guarantor.
(c) After issuing a Payment Demand in accordd in accordance with the ordance witance with the requirements specified in
Section 2(b) above, Counterparty shall not be rty shall not be required toall not be requirrequired to issue any further notices or
make any further demands with respect to the Overdue Obligation(s) specified in that with respect to the Overdueith respect to the
Payment Demand, and Guarantor shall be required to make payment with respect to the uarantor shall be required tontor shall be requ
Overdue Obligation(s) specified in that Payment Demand within five (5) Business Days specified in that Payment Dfied in that Paym
after Guarantor receives such deives such demand. As useuch demand. Amand. As used herein, the term “Business Day” shall
mean all weekdays (i.e., Monday through Friday) other than any weekdays during which ys (i.e., Monday through FriMonday thr
commercial banks or financial institutions are aunks or financial institutions r financial instituthorized to be closed to the public in the
State of Florida, the State of Texas or the State of New York. rida,idthe State of Texas or the State of Texa
3. REPRESENTATIONS AND WARRANTIESRESENTATIONS AND WANTATIONS AN. Guarantor represents and warrants that:
(a) it is a corporation duly organized and valiit is a corporation duly orga corporation duldly existing under the laws of the State of
Florida and has the corporate power and authoriFlorida and has the corpoida and has the ty to execute, deliver and carry out the
terms and provisions of the Guaranty; terms and provterms and provisions o
(b)(b(b) no authorization, approval, consent or order of, or no authorization,no autho registration or filing with, any court or
other governmental body having jurisdiction over Guarantor is required on the part of other governmhergo
Guarantor for the execution and delivery of this Guaranty; and Guarantor f
(c) this Guaranty constitutes a valid and legalhis Gly binding agreement of Guarantor, enforceable
against Guarantor in accordance with the terms hereof, except as the enforceability
E-2
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
thereof may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally and by
general principles of equity.
4. RESERVATION OF CERTAIN DEFENSES. Without limiting Guarantor’s own
defenses and rights hereunder, Guarantor reserves to itself all rights, setoffs, counterclaims and aim
other defenses to which Obligor is or may be entitled arising from or out of the Agreement, Agreemeem
except for defenses (if any) based upon the bankruptcy, insolvency, dissolution or liquidation of r liquidation ofon
Obligor or any lack of power or authority of Obligor to enter into and/or perform the Agreement.m the AgreemenAgreement.t
5. AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall be this Guaranty shall be Guaranty shall be
amended, modified, altered, waived or supplemented except in a writing signed by Guarantor iting signed by Guarantor ned by Guarantor
and Counterparty.
6. WAIVERS AND CONSENTS. Subject to and in accon accordance with the termn accordance with the termrdance with the terms and
provisions of this Guaranty:
(a) Except as required in Section 2 above, Guarantor hereby waives (i) notice of acceptance ntor hereby waives (i) noticby waives (i)
of this Guaranty; (ii) presentment and demand concerning the liabilities of Guarantor; and and concerning the liabilitiesd concerning the liab
(iii) any right to require that any action or proceeding be brought against Obligor or any or proceeding be brought agoceedi
other person, or to require that Counterpartunterparty seek enforcemearty seek y seek enforcement of any performance
against Obligor or any other person, prior to ann, prior to any action againstany action ay action against Guarantor under the terms
hereof.
(b) No delay by Counterparty in the exercise y in the exercise of (or failurthe exercise of (oof (or failure by Counterparty to exercise) any
rights hereunder shall operate as a waiver of suoperate as a waiver of such re as a waiver of sch rights, a waiver of any other rights or a
release of Guarantor from its obligations r from its obligations hereum its obligationshereunder (with the understanding, however,
that the foregoing shall not be deemed to constitute a waiver by Guarantor of any rights g shall not be deemed to conot be deem
or defenses which Guarantor may at any time hahich Guarantor may at any tiGuarantor may at ve pursuant to or in connection with any
applicable statutes of limitation). tatutes of limitation). tatutes of limitation).
(c) Without notice to or the consent of Guut notice to or the consenotice to or the carantor, and without impairing or releasing
Guarantor’s obligations under this Guaranty, Counterparty may: (i) change the manner, arantor’s obligations under s obligation
place or terms for payment of all or any of the Obligations (including renewals, place or terms for paymeor terms for p
extensions or other alterations of the Obligatextensions or other alternsions or other ions); (ii) release Obligor or any person
(other than Guarantor) from liability for pa(other than Gu(other than Guarantor)yment of all or any of the Obligations; or (iii)
receive, substitute, surrender, exchange or releareceive, substireceive, substitute, se any collateral or other security for any
or all of the Obligations. or all of tor all of the Oblig
7. REINSTATEMENTREINSTA. Guarantor agrees that this Guaranty shall continue to be effective
or shall be reinstated, as the case may be, if alall be reinsall bl or any part of any payment made hereunder is at
any time avoided or rescinded or must otherwise be e avorestored or repaid by Counterparty as a result
of the bankruptcy or insolvency of Obligor, all as though such payments had not been made.
E-3
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
8. TERMINATION.Unless terminated earlier, this Guaranty and the Guarantor’s
obligations hereunder will terminate automatically and immediately upon the earlier of (i)
termination of the Agreement or (ii) June 30, 2041; provided, however, that no such termination
shall affect Guarantor's liability with respect to any Obligations arising under any transactions
entered into prior to the time the termination is effective, which Obligations shall remain subject n su
to this Guaranty.
9. NOTICE. Any Payment Demand, notice, request, instruction, correspondence or other pondence or other ce or othe
document to be given hereunder (herein collectively called “Notice”) by Counterpartyby CounterpartyCounterparty to to to
Guarantor, or by Guarantor to Counterparty, as applicable, shall be in writing and may be n writing and may be ting and may be
delivered either by (i) U.S. certified mail with postage prepaid and return receipt requested, or eturn receipt requested, or eipt requested, or
(ii) recognized nationwide courier service with delivery receipt requested, in either case to be quested, in either case to bed, in either case
delivered to the following address (or to such other U.S. address as may be specified via Notice as may be specified via Noas may be specified via
provided by Guarantor or Counterparty, as applicable, to the other in accordance with the the other in accordance wthe other in accordance w
requirements of this Section 9):
TOGUARANTOR: *TO COUNTERPARTY:#COUNTERPARTY:ERPARTY:##
NextEra Energy Capital Holdings, Inc.City of Denton, TexasCity of Denton, Texasty of Denton, Texas
700 Universe Blvd.c/oc/oDenton Municipal ElectricDentoDenton Municipal Ele
Juno Beach, Florida 334081659 Spencer Road1659 Spencer Road659 Spence
Attn: TreasurerDenton, TX 76205Denton, TX 76205enton, TX 7
Attn:Attn:Attn:General ManagerGeneGeneral Ma
\[Tel: (561) 694-6204 --for use in connection in connection onnection \[Tel: (940)349-8487--for use in connection \[Tel: \[Tel: (940)
with courier deliveries\]with courier deliveries\]witwith cou
*(NOTE: Copies of any Notices to Guarantor under this Guaranty shall also be sent via of any Notices to Guarantootices to G
facsimile to ATTN: Contracts Group, LegalTTN: Contracts Group, LegContracts Group, Fax No. (561) 625-7504 and ATTN: Credit
Department, Fax No. (561) 625-7642. However, such facsimile transmissions shall not t, Fax No. (561) 625-7642. , Fax No. (561) 6
be deemed effective for delivery purposes under this Guaranty.) ed effective for delivery purpffective for delivery
#(NOTE: Copies of any Notices to CounterparOTE: Copies of any NoticeCopies of anyty under this Guaranty shall also be sent
via facsimile to ATTN: City Attorney’s Office, via facsimile to ATTN: City acsimile to ATTNCity of Denton, Texas, Fax No.. However,
such facsimile transmissions shall not be such facsimile transmissh facsimile trandeemed effective for delivery purposes under
this Guaranty.)this Guaranty.)this Guaranty.)
Any Notice given in accordance with this Section Any Notice giveAny Notice given in ac9 will (i) if delivered during the recipient's
normal business hours on any given Business Day, be deemed received by the designated normal businesnormal business hou
recipient on such date, and (ii) if not deliveipient on such ipienred during the recipient's normal business hours on
any given Business Day, be deemed received by given Busgivethe designated recipient at the start of the
recipient's normal business hours on the next Business Day after such delivery. 's no
E-4
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
10. MISCELLANEOUS.
(a) This Guaranty shall in all respects be governed by, and construed in accordance with, the
law of the State of New York, without regard to principles of conflicts of laws thereunder
(other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
(b) This Guaranty shall be binding upon Guarantor and its successors and permitted assigns tted assigssi
and inure to the benefit of and be enforceable by Counterparty and its successors and successors ands an
permitted assigns. Guarantor may not assign this Guaranty in part or in whole without in whole without ole withou
the prior written consent of Counterparty. Counterparty may not assign its rights or assign its rights or gn its rights or
benefits under this Guaranty in part or in whole without the prior written consent of rior written consent of written consent of
Guarantor.
(c) This Guaranty embodies the entire agreement and understanding between Guarantor and tanding between Guarantor anding between Guarant
Counterparty and supersedes all prior agreements and understandings relating to the nd understandings relating nd understandings relating
subject matter hereof.
(d) The headings in this Guaranty are for purposes of reference only, and shall not affect the s of reference only, and sharence only, a
meaning hereof. Words importing the singular ular number hereunder shalllar number hereundernumber hereunder shall include the plural
number and vice versa, and any pronouns usedouns used herein shall be used herein shall be deemed to cover all
genders. The term "person" as used heused herein means any iherein merein means any individual, corporation,
partnership, joint venture, limited liability liability company, associacompany, association, joint-stock company, company, a
trust, unincorporated association, or government n, or government (or any aggovernment (or (or any agency or political subdivision
thereof).
(e) Wherever possible, any provision in this Guaranty which is prohibited or unenforceable y provision in this Guarantyvision in this Gua
in any jurisdiction shall, as to such jurisdichall, as to such jurisdiction,s to such jurisdtion, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and enforceability without invalibility witho
any such prohibition or unenforceability in any one jurisdiction shall not invalidate oribition or unenforceability n or unenforceab
render unenforceable such provision in any other jurisdiction. forceable such provision in aforceable such provisi
(f) Counterparty (by its acceptance of this Guaranerparty (by its acceptance ofy (by its acceptaty) and Guarantor each hereby irrevocably:
(i) consents and submits to the exclusive jconsents and submits to thes and submiurisdiction of the United States District Court
for the Southern District of New York, orfor the Southern District ofe Southern Distr if that court does not have subject matter
jurisdiction, to the exclusive jurisdiction jurisdiction, to the exclussdiction, to the eof the Supreme Court of the State of New York,
New York County (without prejudice to the riNew York CoNew York County (wght of any party to remove to the United
States District Court for the Southern DistStates DistrictStates District Courrict of New York) for the purposes of any suit,
action or other proceeding arising out of this action oraction or other prGuaranty or the subject matter hereof or any
of the transactions contemplated hereby of the transacfthetbrought by Counterparty, Guarantor or their
respective successors or assigns; and (ii)respective waives (to the fullest extent permitted by
applicable law) and agrees not toapapplicab assert any claim that it is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an urisd
E-5
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
inconvenient forum, that the venue of the suit, action or proceeding is improper or that
this Guaranty or the subject matter hereof may not be enforced in or by such court.
(g) COUNTERPARTY (BY ITS ACCEPTANCE OF THIS GUARANTY) AND
GUARANTOR EACH HEREBY IRREVOCABLY, INTENTIONALLY AND
VOLUNTARILY WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO EC
ANY LEGAL PROCEEDING BASED ON, OR ARISING OUT OF, UNDER OR IN DER OR OR
CONNECTION WITH, THIS GUARANTY OR THE AGREEMENT, OR ANY NT, OR ANYAN
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER NTS (WHETHER WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON RELATING HERETO ELATING HERETO ING HERETO
OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO INDUCEMENT TO UCEMENT TO
GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY.GUARANTY.NTY
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on _____________, 20__, Guaranty on _____________uaranty on _____________
but it is effective as of the Effective Date.
NEXTERA ENERGY CAPITAL HOLDINGS, RA ENERGY CAPITAL HORGY CAPITA
INC.
By:___________________________________ By:_____________________________
Name:_________________________________ Name:________Name:_____________
Title:__________________________________ Title:____Title:____________
E-6
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT F
FORM OF LETTER OF CREDIT
\[ISSUING BANK\] IRREVOCABLE STANDBY LETTER OF CREDIT
DATE OF ISSUANCE:
\[Date of issuance\]
\[BENEFICIARY\](“Beneficiary”)
\[Address\]
Attention: \[Contact Person\]
Re: \[ISSUING BANK\] Irrevocable Standby Letter of Credit No.________ ______ __
Messrs./Mesdames:
We hereby establish in favor of Beneficiary (sometimes alternatively referred to natively referred to vely referred therein as “hereherein as you”) this
Irrevocable Standby Letter of Credit No. _______ (the “Letter of Creditter of Creditf Cr”) for the account of \[”) for the accounr tNextEra
Energy Capital Holdings, LLC\] \[--- Address ---\] and \[NextEra Energy Resources, LLC, (--- Address ---)xtEra Energy Resources, LLC, rgy Resources\]
(“Account Parties”), effective immediately and expiring on the date determined as specified in numbered ng on the date determined as spon the date determined
paragraphs 5 and 6 below.
We have been informed that this Letter of Credit dit is issued pursuant to the teis issued pursuant to the terms of that certain \[ed pursuant tdescribe
the underlying agreement which requires this LCis LCC\].\].
1.Stated Amount.The maximum amount available for drawing by you under this Letter of Credit um amount available for drawiamount available f
shall be \[written dollar amount\] United States Dollars (US$\[United States Dollars (US$\[States Dollars (Udollar amountdo\]) (such maximum amount
referred to as the “Stated Amountnt”).”).
2.Drawings.A drawing hereunder may be made by you on any Business Day on or prior to the wing hereunder may be made under may
date this Letter of Credit expires by delivering to t expires by delivering to res by delivering t\[ISSUING BANK\]\[ISS, at any time during its business hours
on such Business Day, at y, at y, a\[bank address\]\[bank address\]ank address\] (or at such other address as may be designated by written notice (or at such(
delivered to you as contemplated by numbered as contemplated by numberedcontemplated by nuparagraph 9 hereof), a copy of this Letter of Credit
together with (i) a Draw Certificate executed by (i) a Draw Certificate executDraw Certificate an authorized person substantially in the form of
Attachment AAhereto (the “hereto (the “o (the “Draw CertificateDraw CeDraw Certific”), appropriately completed and signed by your authorized
officer (signing as such) and (ii) your draft substantially in the form of gning as such) and (ii) your druch) and (ii) yAttachment Bhereto (the “Draft”),
appropriately completed and signed by your authorizedriately completed and signed y completed and s officer (signed as such). Partial drawings and
multiple presentations may be made under this Letter oftiple presentations may be maple presentations m Credit. Draw Certificates and Drafts under this
Letter of Credit may be presented by Beneficiary by means of facsimile or original documents sent by Letter of Credit may be presenetter of Credit may be
overnight delivery or courier toovernight delivery or covernight delivery or courier\[ISSUING BANK\] at our address set forth above, Attention: ___________
(or at such other address as may be designated by (or at such other (or at such other addresswritten notice delivered to you as contemplated by
numbered numbernumbered paragraph 9paragraph 9 below). In the event of a presentation by facsimile transmission, the original of
such documents need not be sent to us. ch documents neech do
3. Time and Method for Payment.Time We hereby agree to honor a drawing hereunder made in
compliance with this Letter of Credit by transferring in immediately available funds the amount specified
F-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
in the Draft delivered to us in connection with such drawing to such account at such bank in the United
States as you may specify in your Draw Certificate. If the Draw Certificate is presented to us at such
address by 12:00 noon, \[_______\] time on any Business Day, payment will be made not later than our
close of business on third succeeding business day and if such Draw Certificate is so presented to us after
12:00 noon, \[_______\] time on any Business Day, payment will be made on the fourth succeeding
Business Day. In clarification, we agree to honor the Draw Certificate as specified in the preceding
sentences, without regard to the truth or falsity of the assertions made therein.
4. Non-Conforming Demands.If a demand for payment made by you hereunder does not, in any does not, in any not, in an
instance, conform to the terms and conditions of this Letter of Credit, we shall give you prompt notice you prompt notice ompt notic
that the demand for payment was not effectuated in accordance with the terms and conditions of this and conditions of this onditions of this
Letter of Credit, stating the reasons therefor and that we will upon your instructions hold any documents tions hold any documents hold any documents
at your disposal or return the same to you. Upon being notified that the demand for payment was not emand for payment was not r payment was not
effectuated in conformity with this Letter of Credit, you may correct any such non-conforming demand. uch non-conforming demand. n-conforming dem
5. Expiration.This Letter of Credit shall automatically expire at the close of business on the date e at the close of business on the at the close of business on t
on which we receive a Cancellation Certificate in the form of Attachment CAttachment CttacC hereto executed by your hereto executedhereto ex
authorized officer and sent along with the original of this Letter of Credit and all amendments (if any). of Credit and all amendmentsCredit and all am
6. Initial Period and Automatic Rollover.The initial period of this Letter of Credit shall e initial period of this Lettee initial period of this
terminate on \[one year from the issuance date\] (the “Initial Expiration DateInitial Expiration Datenitial Expiration Da”). The Letter of Credit ”).
shall be automatically extended without amendment for one (1) year periods from the Initial Expiration nt for one (1) year periods froone (1)
Date or any future expiration date, unless at least sixty (60) days prior to any such expiration date we send sixty (60) days prior to any su60) days prio
you notice by registered mail or courier at your address first shown (or such other address as may be your address first shown (or sss first show
designated by you as contemplated by numbered mbered paragraph 9paragraph 9paragraph 9) that we elect not to consider this Letter of ) that) that we el
Credit extended for any such additional one year period. one year period. ne year period.
7. Business Day.As used herein, “erein, “Business DayBusiness DayBusiness Day” shall mean any day on which commercial banks ” sh” shall m
are not authorized or required to close in the State of \[New York\], and inter-bank payments can be to close in the State of \[Neose in the State
effected on the Fedwire system. em.
8. Governing Law.aw.THIS LETTER OF CREDIT IS GOVERNED BY, AND CONSTRUED IN THIS LETTER OF CREHIS LETTER OF
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND, EXCEPT AS WITH THE LAWS OF THEITH THE LAWS
OTHERWISE EXPRESSLY STATED HEREIN, TO THE INTERNATIONAL STANDBY EXPRESSLY STATED HRESSLY STATE
PRACTICES, ICC PUBLICATION NO. ICC PUBLICATION NO. PUBLICATION 590 (THE “ISP98”), AND IN THE EVENT OF ANY
CONFLICT, THE LAWS OF THE STATE OF NEW YORK WILL CONTROL, WITHOUT REGARD T, THE LAWS OF THE STATAWS OF TH
TO PRINCIPLES OF CONFLICT OF LAWS. NCIPLES OF CONFLICT OF ES OF CONFLIC
9. Notices. Notices. Notices. All communications to you in respect of thisAll coAll communica Letter of Credit shall be in writing and
shall be delivered to the address first shown for you shall be delivered to theshall be delivered to the addresabove or such other address as may from time to time
be designated by you in a written notice to us. All documents to be presented to us hereunder and all be designated by yoube designated by you in a
other communications to us in respect of this Letterother communicatother communications to of Credit, which other communications shall be in
writing, shall be delivered to the address for us inwritingwriting, shall be delivdicated above, or such other address as may from time
to time be designated by us in a written notice to you. me be designatme be
10. Irrevocability.rrevThis Letter of Credit is irrevocable.
F-2
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
11. Complete Agreement.This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein, except for the ISP98 and Attachment A,
Attachment BandAttachment C hereto and the notices referred to herein and any such reference shall not
be deemed to incorporate herein by reference any document, instrument or agreement except as set forth
above.
* * *
SINCERELY,
\[ISSUING BANK\]
____________________________ ___
By: ________________________ ______ _
Title: _______________________ __________ ____
Address:
F-3
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
ATTACHMENT A
FORM OF DRAW CERTIFICATE
The undersigned hereby certifies to \[ISSUING BANK\](“Issuer”), with reference to Irrevocable Letter of
Credit No. ________________ (the “Letter of Credit”) issued by Issuer in favor of the undersigned undersi
(“Beneficiary”), as follows:
(1)The undersigned is the ____________ of Beneficiary and is duly authorized by Beneficiary to d by Beneficiary to eneficiary to
execute and deliver this Certificate on behalf of Beneficiary.
(2) Beneficiary hereby makes demand against the Letter of Credit by Beneficiary’s presentation of Beneficiary’s presentation of ry’s presentation of
the draft accompanying this Certificate, for payment of _______________________ U.S. dollars _______________ U.S. dollar___________ U.S.
(US$__________), which amount, when aggregated together with any additional amount that has ith any additional amount that additional amount
not been drawn under the Letter of Credit, is not in excess of the Stated Amount (as in effect of of the Stated Amount (as in efof the Stated Amount (as in e
the date hereof).
(3)The conditions for a drawing by Beneficiary pursuant to \[ant to \[describe the draw conditions from the describe the drdescribe the draw cond
underlying agreement\].
(4) You are hereby directed to make payment of the requested drawing to: (insert wire instructions) f the requested drawing to: (inequeste
Beneficiary Name and Address:
By:
Title:
Date:
(5) Capitalized terms used herein and not otherwise defined herein shall have the respective used herein and not otherwise herein and not ot
meanings set forth in the Letter of Credit. orth in the Letter of Credit. the Letter of Cred
\[BENEFICIARYARYY\]\]
By: By: By:
Title: Title: Title:
Date: e: e:
F-4
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
ATTACHMENT B
DRAWING UNDER IRREVOCABLE LETTER OF CREDIT NO. _________________
Date:
PAY TO: \[BENEFICIARY\]
U.S.$ ___________________
FOR VALUE RECEIVED AND CHARGE TO THE ACCOUNT OF LETTER OF CREDIT NO. CCOUNT OF LETTER OF NT OF LETT
__________________.
\[BENEFICIARY\]
By:
Title:
Date:
F-5
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
ATTACHMENT C
CANCELLATION CERTIFICATE
Irrevocable Letter of Credit No. _______________
The undersigned, being authorized by the undersigned (“Beneficiary”), hereby certifies on behalf of certifies on behalf of fies on behalf of
Beneficiary to \[ISSUING BANK\](“Issuer”), with reference to Irrevocable Letter of Credit No. e Letter of Credit No. ter of Credit No.
______________ issued by Issuer to Beneficiary (the “Letter of Creditt”), that all obligations of ”), that all obligations of all obligations of
\[PROJECT ENTITY\], an affiliate of the Account Parties, under the \[describe the underlying agreement cribe the underlying agreemenhe underlying agr
which requires this LC\] have been fulfilled.
Pursuant to Section 5 thereof, the Letter of Credit shall expire upon Issuer’s receipt of this certificate. n Issuer’s receipt of this certifiIssuer’s receipt of this
Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set erein shall have the respectivhall have the r
forth in the Letter of Credit.
\[BENEFICIARY\]
By:
Title:
Date:
F-6
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT G
INSURANCE REQUIREMENTS
Before the Commercial Operation Date, Seller shall procure and maintain the following
minimum insurance, with insurers rated “A-” VII or higher by A.M. Best’s Key Rating Guide,
that are licensed to do business in Texas:
(a)Workers’ Compensation Insurance for statutory obligations imposed by imposed by by
Applicable Law, including, where applicable, the Alternate Employer Endorsement, the ndorsement, the ment, the
United States Longshoremen’s and Harbor Workers’ Act, the Maritime Coverage and the me Coverage and the verage and the
Jones Act;
(b)Employers’ Liability Insurance, including Occupational Disease, shall be cupational Disease, shall beional Disease, sh
provided with a limit of (i) One Million Dollars ($1,000,000) for bodily injury per 00,000) for bodily injury ) for bodily inj
accident, (ii) One Million Dollars ($1,000,000) for bodily injury by disease per policy, dily injury by disease per pdily injury by disease per
and (iii) One Million Dollars ($1,000,000) for bodily injury by disease per employee; injury by disease per emplonjury by disease per e
(c)Business Automobile Liability Insurance which shall apply to all owned, Insurance which shall applyce which shal
non-owned, leased, and hired automobiles with a limit of One Million Dollars es with a limit of One es with a limit of
($1,000,000) per accident for bodily injury and property damage; y and property damage; d property damag
(d)General Liability Insurance which shall apply to liability arising out of surance which shall apply twhich shall
premises, operations, bodily injury, property ry, property damage, producoperty damage, pdamage, products and completed operations
and liability insured under and insured contractinsured contract (contractuaed contract (cont (contractual liability), with a limit of One
Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) 000) per occurrence, Two) per occurrenc
aggregate. The products and completed operatiand completed operations completed operatons coverage insurance shall be provided
for the duration of any applicable warranty period; y applicable warranty periodicable warranty
(e)Excess Liability Insurance which shall apply to Employers Liability, xcess Liability Insurance Liability Insu
Commercial General Liability and Business Automobile Liability Insurance, required in General Liability and Businal Liability and B
(b), (c), and (d) above, with a limit of Fid (d) above, with a limit ofd(d) above, with a ve Million Dollars ($5,000,000) per occurrence
and Five Million Dollars ($5,000,000) aggregate; e Million Dollars ($5,000,00lion Dollars ($5,0
(f)Broad Form Property Insurance with (f)Broad Form Prad Flimits of insurance written on a
probable maximum loss basis, including probable maximum loss bable maximum lsublimits for wind, earthquake, and flood
exposures. exposures. osures.
Except for Workers’ Compensation Insurance, BuyerExcept for Workers’ Except for Workers’ Comp shall be endorsed as an additional insured
on Seller’s insurance policies required to be mainton Seller’s insuron Seller’s insurance poained under the Agreement and such policies
shall provide for a waiver of subrogation in favor of Buyer. All policies of insurance required to shall provide foshall provide for a wa
be maintained by Seller hereunder shall provide for a maintainemaind by severability of interests clause and include
a provision tvision tvisihat Sellers’s insurance policies are to be primary and nonha-contributory to any
insurance that may be maintained by or on behalf of Buyer. e tha
G-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
In the event that any policy furnished by Seller provides for coverage on a “claims made” basis,
the retroactive date of the policy shall be the same as the Effective Date, or such other date, as to
protect the interest of Buyer. Furthermore, for all policies furnished on a “claims made” basis,
Seller’s providing of such coverage shall survive the termination of the Agreement and the
expiration of any applicable warranty period, until the expiration of the maximum statutory
period of limitations in the State of Texas for actions based in contract or in tort. If coverage is ver
on “occurrence” basis, Seller shall maintain such insurance during the entire term of the term of tof
Agreement.
Seller shall promptly provide evidence of the minimum insurance coverage required under the e required under the uired under the
Agreement in the form of an ACORD certificate or other certificate of insurance. If any of the nsurance. If any of the nce. If any of the
required insurance is cancelled or non-renewed, Seller shall within thirty (30) days provide thirty (30) days provide 30) days provide
written notice to Buyer and file a new certificate of insurance with Buyer, demonstrating that the Buyer, demonstrating that the demonstrating th
required insurance coverage to be maintained hereunder has been extended or replaced. Neither n extended or replaced. Neided or replaced. N
Seller’s failure to provide evidence of minimum coverage of insurance following Buyer’s of insurance following Bof insurance following B
request, nor Buyer’s decision to not make such request, shall release Seller from its obligation to ll release Seller from its oblrelease Seller from it
maintain the minimum coverage provided for in this Exhibit G. ibit G. G.
Sellershall be responsible for covering all deductibles associated with the foregoing insurance ibles associated with the forbles associated with th
coverage.
G-2
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT H
COMMERCIAL OPERATION CERTIFICATION
This certificate (“Certification”) is delivered by Bluebell Solar II, LLC (“Sellerlle”) to
Denton Municipal Electric (“Buyer”) in accordance with the terms of that certain Power rtain PowPo
Purchase Agreement dated ______, 2018 (“Agreement”) by and between Seller and Buyer. Alland Buyer. Allr. A
capitalized terms used in this Certification but not otherwise defined herein shall have the n shall have the l have th
respective meanings assigned to such terms in the Agreement. Seller hereby certifies and hereby certifies and y certifies and
represents to Buyer the following:
(a)all necessary and material permits, consents, licenses, approvals, and nts, licenses, approvals, ancenses, approval
authorizations required to be obtained by Seller from any Governmental Authority to any Governmental Authorityy Governmental Autho
construct and/or operate the Project in compliance with Applicable Law and this e with Applicable Law an with Applicable Law an
Agreement have been obtained and are in full force and effect; and effect; nd e
(b)Seller is in compliance with this Agreement in all material respects; s Agreement in all material rment in all ma
(c)the Project is available to commencecommence normal operationmence normal operations in accordance with
Seller’s Operating Procedures, the construcnstruction contract, and apption contract, and applicable manufation contrcturers’
warranties;
(d)Seller is obligated under, and in material compliance with, the igated under, and in maunder, and i
Interconnection Agreement; ;
(e)the Project is fully interconnected to the Transmission Operator’s System, oject is fully interconnected s fully intercon
has been fully tested, has achieved initial ted, has achieved initial sys achieved initsynchronization, and has been successfully
operated at a generation level acceptable generation level acceptabration level acto the Transmission Operator, without
experiencing any abnormal or unsafe operating conditions on any interconnected system; any abnormal or unsafe opebnormal or unsaf
(f)Seller has completed and met all tes(f)Seller has completedSeller has comting requirements of the Project and
Seller’s Interconnection Facilities rer’s Interconnection Facilitieserconnection Facquired by the Interconnection Agreement;
(g)Seller has used Commercially Reasonable Efforts to timely make, where (g)(g)Seller has usSeller h
applicable, all necessary governmental filings applicable, all necessarylicable, all neceand/or applications for REC accreditation
and registration; and registrationand registration;
(h)Seller has made all other arrangements((h)Se necessary to deliver the Net Output
of the Project to the Delivery Point; and of the Project hePr
(i)(Seller has demonstrated the reliability of the Project’s communications
systems and communication ysteinterface with Seller’s QSE.
H-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate on behalf of
the Seller as of the ___ day of ____________ 201__.
BLUEBELL SOLAR II, LLC
By: _______________________ _
Name: ___________________ ______
Title: ____________________ _____________
H-2
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT I
PROJECT INVESTOR NOTICE INFORMATION
\[THIS PAGE INTENTIONALLY LEFT BLANK, BUT WILL BE UPDATED BY ATED BY Y
SELLER WHEN APPLICABLE\]
I-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
EXHIBIT J
OPERATING PROCEDURES CRITERIA
The Operating Procedures for the Project to be agreed upon by Buyer and Seller pursuant to uant too
Section 3.13 shall address, among others, the following:
I.Energy Trades
II.Capacity Trades
III.Buyer Curtailment Orders
IV.Outage Notification
V.Day-Ahead Availability Notice
VI.Contact Information
J-1
This document and any attachments or exhibits thereto may contain information that is confidential, commercially-
sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the
provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected
from required public disclosure.
Exhibit 'A'
City Hall
City of Denton
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Legislation Text
File #:ID 18-844,Version:1
AGENDA CAPTION
Consider adoption of an ordinance authorizing the execution of a settlement agreement between the City of
Denton and the Board of Regents of the University of Texas System on behalf of the University of Texas at
Arlington (“UTA”) related to monies paid by Denton to UTA for solid waste research and related activities at
Denton’s ECO-W.E.R.C.S. resource recovery facility and including Denton’s membership in UTA’s Solid
Waste Institute of Sustainability; authorizing the City Manager and City Attorney to effectuate the settlement;
and, providing for an effective date.
City of DentonPage 1 of 1Printed on 5/4/2018
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City of Denton
City Hall
215 E. McKinney
Street
Denton, Texas
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT:Solid Waste & Recycling Department
CM/DCM/ACM:Mario Canizares
DATE:May 8, 2018
SUBJECT
Consider adoption of an ordinance authorizing the execution of a settlement agreement between the City of
Denton and the Board of Regents of the University of Texas System on behalf of the University of Texas
at Arlington (“UTA”) related to monies paid by Denton to UTA for solid waste research and related
activities at Denton’s ECO-W.E.R.C.S. resource recovery facility and including Denton’s membership in
UTA’s Solid Waste Institute of Sustainability; authorizing the City Manager and City Attorney to effectuate
the settlement; and, providing for an effective date.
BACKGROUND
Since 2009, the City of Denton has been involved in a series of four interagency agreements with UTA in
which the University performedresearch projects at the City’s landfill. The subject matter of these projects
focused on theperformance monitoring of various landfill systems. In 2015, the City entered into a
$400,000 agreement with UTA to provide research and consulting services related to Solid Waste’s landfill
mining program. Also in 2015, the City’s Solid Waste department began participating as a charter member
of UTA’s Solid Waste Institute of Sustainability(SWIS).
During the past year, there has been a concentrated effort by City staff to review the business practices,
programs,and budgeting methodology at the Solid Waste Department. As part of these efforts, the staff
briefed the City Councilon September 19, 2017regarding the feasibility and financial impactof the
department’s landfill mining operation. The Council elected to discontinue the mining program to avoid
projected annual losses in the range of $1 to $1.5 million.
Following the discontinuationof themining program, staff performed an audit of theUTA agreement as
part of an effortto eliminate all mining program costs from the Solid Waste budget. During this review, it
wasdetermined that paymentshad been remitted to UTA for work that could not have been completed, as
the landfill mining program had yet to be implemented. Shortly thereafter, City staff engaged UTA to
negotiate the return of unexpended funds from the agreements, projects, and SWIS membership.
The settlement agreement attached for Council’s consideration provides for the immediate return of
unexpended funds totaling $600,000 along with the potential return of an additional $26,000 following the
financial closeout of the final agreement. As part of this settlement, the City of Denton and UTA release
one another from any disputes, claims, or demands related strictly to these agreements, projects, and/or
SWIS membership.
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.Presentation
3.Ordinance
Respectfully submitted:
Ethan Cox, 349-7421
Director of Solid Waste
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT between The Board of Regents of The University
of Texas System on behalf of the University of Texas at Arlington (“UTA”), and the City of
Denton, a Texas home-rule municipal corporation (“COD”). The Settlement Agreement is
effective the latter of the dates the Parties execute the same (“Effective Date”).
The parties to this Settlement Agreement are hereinafter referred to individually as a
“Party” or collectively as the “Parties.”
WITNESSETH
WHEREAS, the Parties entered into the following agreements wherein UTA provided
services for COD:
a. Interagency Cooperation Contract between the Parties executed by UTA on April
4, 2009 and COD on April 21, 2009 (Ordinance No. 2009-096) for several technical tasks
including, generally, the Performance Monitoring of Leachate Recirculation (“Project No. 1”).
Project No. 1 was conducted during the May 1, 2009, through April 30, 2012 timeframe.
b. Interagency Cooperation Contract between the Parties executed by UTA onAugust
22, 2012 and COD on September 18, 2012 (Ordinance No. 2012-239) for several technical tasks
including, generally, the Performance Monitoring of Landfill Gas Collection System and
Estimation of Landfill Gas Emission (“Project No. 2”). Project No. 2 was conducted during the
May 1, 2012, through April 30, 2015 timeframe.
c. Interagency Cooperation Contract between the Parties executed by UTA on January
13, 2014 and COD on February 19, 2014 (Ordinance No. 2014-048) for several technical tasks
including, generally, the Installation and Performance Monitoring of Evapotranspiration Cover
System (“Project No. 3”). Project No. 3 was conducted during the period February 1, 2014, through
January 31, 2017 timeframe.
d. Interagency Cooperation Contract between the Parties executed by UTA on June
12, 2015 and COD on August 4, 2015 (Ordinance No. 2015-225) for several technical tasks
including, generally, the Feasibility of Landfill Mining Operation and Monitoring (“Project No.
4”). Project No. 4 was conducted during the May 1, 2015, through April 30, 2018 timeframe.
e. Collectively, the above agreements are referred to as “Agreements”; the above
projects are referred to as “Projects”.
WHEREAS, disagreements have arisen between the Parties regarding the Agreements, the
Projects and COD’s membership (“Membership”) in UTA’s Solid Waste Institute for
Sustainability (“SWIS”); and
WHEREAS, the parties desire to resolve any and all disagreements regarding the
Agreements, Projects and the SWIS Membership.
NOW THEREFORE, for and in consideration of the mutual releases and agreements
herein contained, the promises of payment herein provided, the sufficiency of which are hereby
acknowledged and confessed, the Parties hereto have agreed, and do hereby agree, to the
following:
1.Unexpended Funds. UTA agrees to return unexpended funds to COD in the amount of
Six Hundred Thousand Dollars ($600,000.00) (the “Unexpended Funds”) from the
amounts paid by COD to UTA under the Agreements, the Projects and for its SWIS
Membership. This amount reflects all changes, payments, credits, claims, contract
balances, retainage, costs of completion and any and all other disagreements between the
Parties and is not subject to further audit.
2.
a.Project No. 4 Additional Unexpended Funds. UTA will retain Twenty Six
Thousand Dollars ($26,000.00) in COD payments received for Project No. 4, which
expired on April 30, 2018, in order to complete normal and customary contract
financial closeout and resolve all current or pending obligations related to Project
No. 4. Upon final closeout on or before July 31, 2018, UTA will return any
unexpended funds from this retained amount (“Project 4 Additional Unexpended
Funds”). UTA will provide COD with an accounting of how it determined the
Project No. 4 Additional Unexpended Funds amount. The Unexpended Funds and
the Project 4 Additional Unexpended Funds are referred to herein as the
“Settlement Amount”.
3.Payment of Settlement Amount.
a.Unexpended Funds. UTA agrees to pay the Unexpended Funds to COD within
thirty (30) days of the full execution date of this Settlement Agreement.
b.Project No. 4 Additional Unexpended Funds. UTA agrees to pay the Project No.
4 Additional Unexpended Funds to COD by July 31, 2018.
4.Personal Property Located on COD Property.
a. The attached Exhibit “A” is a list of personal property located at or on real property
owned by COD (“Personal Property”).
b. UTA has until 5:00 pm thirty days from the Effective Date to provide
documentation satisfactory to COD that it owns some or all of this Personal Property,
c. If UTA provides documentation satisfactory to COD that UTA owns some or all of
this Personal Property then the Parties will make arrangements for UTA to pick up the
same by close of business forty-five (45) days from the Effective Date.
d. If UTA does not comply with paragraphs 4.a. and 4.b. then UTA, by having
executed this Settlement Agreement, is deemed to have conveyed all right, title and interest
it may have in and to any and all personal property, including but not limited to that listed
in Exhibit “A” attached hereto, located at or on any real property owned by COD
(collectively, the “Property”).
e. UTA agrees to cooperate with COD in the identification and return of personal
property to COD that was purchased by COD on behalf of UTA and/or SWIS but is not
located at the Property.
5.Release.With the exception of the reserved rights and obligations set forth in the
immediately following Section (the “Reserved Rights”), and subject to the timely payment
and receipt of the Settlement Amount, both Parties fully, finally, and mutually release,
acquit, and forever discharge each other and each other’s respective employees, officers,
partners, members, affiliates, subsidiaries, principals, regents, council members, directors,
sureties, insurers, guarantors, additional insurers, excess insurers, successors, and all other
persons and entities in privity with any of them, of and from any and all disputes, claims,
demands, claims of subrogation or indemnity, claims to any contract or subcontract
balances or retainage, claims for delay, consequential damages, and causes of action of any
kind whatsoever, whether known or unknown, whether heretofore or hereafter accruing or
arising, whether held by assignment or otherwise, and whether sounding in tort, intentional
tort, contract, warranty, or trespass, or arising by operation of law or statute, that either
Party has, had, or may ever have against the other Party, in any way related to the
Agreements, the Projects and/or SWIS Membership. The Parties agree that this release is
strictly limited to the Agreements, the Projects and/or SWIS Membership. The Parties
further agree that this release does not include any other agreement, project or matter not
specifically addressed herein.
6.Reserved Rights. The following Reserved Rights are not released hereby and shall survive
the execution of this Settlement Agreement:
a.The obligations specifically undertaken or reaffirmed by either Party in this
Settlement Agreement.
b.The reservation by any Party entitled to receive funds hereunder, of claims
against any Party failing to make payment as provided herein,
7.Compromise and Settlement/No Admission of Liability. This Settlement Agreement is
a compromise and settlement of disputed claims and is being entered into solely to avoid
the time, expense, uncertainty, and inconvenience of continued dispute, discussion, and
litigation. Neither the execution of this Settlement Agreement nor anything stated herein,
nor any amount paid or returned hereunder, is to be construed or deemed as an admission
of default, liability, culpability, error or wrongdoing on the part of either Party to this
Settlement Agreement.
8.Ownership of Claims. The Parties represent and warrant that they own the claims released
herein and have not assigned or otherwise transferred any claim or cause of action that they
may have possessed against another Party to any person or entity not a Party to this
Settlement Agreement.
9.Authority to Sign. The signatories hereto warrant and represent that they have the full
power and authority to bind the Party entity for which they have signed.
10.Integrated Agreement. This Settlement Agreement constitutes a single, integrated,
written contract expressing the entire understanding and agreement between the Parties.
The terms of the Settlement Agreement are contractual and not merely recitals. There is no
other agreement, written or oral, expressed or implied, between the Parties with respect to
the subject matter of this Settlement Agreement. The Parties declare and represent that no
promise, inducement or other agreement not expressly contained in this Settlement
Agreement has been made by any other Party.
11.Each Party Represented by Counsel. Each Party adopts this Settlement Agreement as
the product of a group drafting effort of counsel for all Parties, not to be construed more
favorably for or against any Party to this Settlement Agreement.
12.No Waiver of Sovereign Immunity. Nothing in this Settlement Agreement shall be
construed as a waiver of sovereign immunity, except for the purpose of adjudicating a claim
for breach of an express provision of this Settlement Agreement.
13.Law and Venue. The laws of the State of Texas will govern the interpretation of this
Settlement Agreement. The courts of Denton County, Texas will have jurisdiction over any
disputes arising under this Settlement Agreement.
14.Multiple Counterparts. This Settlement Agreement may be executed in multiple
facsimile counterparts, and with facsimile signatures, and all such counterparts shall
together be deemed to constitute one final agreement, as if each Party had signed one
document. Each such counterpart or a facsimile copy thereof shall be deemed to be an
original, binding the Parties subscribed thereto.
CITY OF DENTON
___________________________________ _________________
Todd Hileman, City Manager Date
Attest:
Jennifer Walters, City Secretary
By: ___________________________________
Approved as to Legal Form:
Aaron Leal, City Attorney
By: ___________________________________
THE UNIVERSITY OF TEXAS AT ARLINGTON:
__________________________________ __________________
Vistasp M. Karbhari Date
President
FOR THE UNIVERSITY OF TEXAS SYSTEM, SIGNIFYING APPROVAL BY THE
UNIVERSITY OF TEXAS SYSTEM BOARD OF REGENTS:
____________________________________ __________________
Dan Sharphorn Date
General Counsel & Vice Chancellor
The University of Texas System
EXHIBIT "A" - Personal Property
ItemDescriptionPart/Serial#QtyLocation
PictureFileName
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Њ
FisherIsotempOvenModel215F1SWISBuilding
2
AssortedlabglassEst.50SWISBuilding
3
Autoclavepipettools1BoxSWISBuilding
4
Assortedtubing1BoxSWISBuilding
5
HachCompanyModel#45300011SWISBuilding
6
TubingrollsSWISBuilding
Veridian
7
MicroMeasurementsModelP3Serial#1956421SWISBuilding
8
GraduatedCylindersPipets1BoxSWISBuilding
9
SamplingequipmentandScoops1BoxSWISBuilding
10
WheatonInstrumentsUnispensedispenserDose
CounterSerial#17881SWISBuilding
11
NuovaStirPlateBarnsteadThermolyneSerial#7579701612511SWISBuilding
12
2Large
LargerlabglassBoxesSWISBuilding
13
Corrugatedplastictube4SWISBuilding
14
Fernco4"Fittings2SWISBuilding
15
GasWellparts2SWISBuilding
16
2"HTPEPipefittings1BagSWISBuilding
17
Wellhead1SWISBuilding
18
1small
gaswellfittingsboxSWISBuilding
19
FisherScientificSci60LOvenGravitySerial#419908021SWISBuilding
20
MicroscopeSlids1BoxSWISBuilding
21
CHEMetricswateranalysisSystemV2000Photometer1SWISBuilding
22
FisherScientificSerial#910626441SWISBuilding
23
TimexAlarmClock1SWISBuilding
24
Tapemeasures,assortedtoolsandfittings1BoxSWISBuilding
25
Trashbagsanddustmasks1BoxSWISBuilding
26
Timesaver2"BallValve1SWISBuilding
27
MBondAE10AdhesiveKit1BoxSWISBuilding
28
PBCfittingsandFernco's2"1BoxSWISBuilding
29
StrainIndicatorandRecorderSerial#1956421SWISBuilding
30
RubberMaidStorageContainers1BoxSWISBuilding
31
2PieceMirror1SWISBuildingOffice
32
VAL040010Valve876303211SWISBuildingOffice
33
Falanges1SWISBuildingOffice
33
FalangeKit2SWISBuildingOffice
33
OfficeCharis4SWISBuildingOffice
36
Desk1SWISBuildingOffice
36
Smallbookshelf1SWISBuildingOffice
36
5gallonjugs1SWISBuilding
38
Table289644201001Bldg,TrainingRoom
39
CresonProjectorRLF550178L11001Bldg,TrainingRoom
40
DarkMapleRoundTable31001Bldg,TrainingRoom
41
HardHats51001Bldg,TrainingRoom
42
SafetyGlasses31001Bldg,TrainingRoom
43
ProjectorScreen11001Bldg,TrainingRoom
44
WhiteBoards21001Bldg,TrainingRoom
45
FramedPictures151001Bldg,TrainingRoom
46
NonFramedPictures61001Bldg,TrainingRoom
47
Podium11001Bldg,TrainingRoom
48
WirelessMicBLX1H911001Bldg,TrainingRoom49
EpsonProjectorRemote11001Bldg,TrainingRoom
50
EliteScreenRemote21001Bldg,TrainingRoom
51
FireExtinguisher11001Bldg,TrainingRoom
52
SideChairs51001Bldg,TrainingRoom
53
Table11001Bldg,room103
54
Chairs423482M31001Bldg,room103
55
Whiteboard11001Bldg,room103
56
Bldg,room103
Easel21001
57
Trashcan11001Bldg,room103
58
SectionalDesk11001Bldg,room102
59
Chairs11001Bldg,room102
60
Table11001Bldg,room104
61
Trashcan11001Bldg,room104
62
Table21001Bldg,room106
63
Chair11001Bldg,room106
64
room106
Whiteboard11001Bldg,65
Table31001Bldg,room105
66
Whiteboard11001Bldg,room105
67
1001Bldg,room107,
Table1electricalroom
68
1001Bldg,room107,
VerizonWirelessRouterPINCSXI34501045061electricalroom
69
1001Bldg,room107,
VerizonNetworkBoxMRCC0030959B1electricalroom
70
1001Bldg,room107,
TotalAccess924Box3125I278E1electricalroom
71
Table21001Bldg,breakroom
72
Chairs91001Bldg,breakroom
73
WhirlpoolRefrigerator11001Bldg,breakroom
74
SamsungMicrowave11001Bldg,breakroom
75
Tables31001Bldg,room108
76
Chair11001Bldg,room110
77
FireExtinguishers6SWISBuilding
78
Trashcan2SWISBuilding
79
Shelf1SWISBuilding
80
Scale1SWISBuilding
81
AutoClave1SWISBuilding
82
RefrigeratorTheBigOne1SWISBuilding
83
NitrogenTank1SWISBuilding
84
OxygenTank1SWISBuilding
85
DissolveOxygenReagent4SWISBuilding
86
SulphuricAcid2SWISBuilding
87
PhosphoricAcid1SWISBuilding
88
NitricAcid1SWISBuilding
89
AmmoniumPersulfate1SWISBuilding
90
AndroFireAntKiller1SWISBuilding
91
MiscRocks1SWISBuilding
92
WeekKiller1SWISBuilding
93
GrassKiller1SWISBuilding
94
SinkandSweep1SWISBuilding
95
Acetone1SWISBuilding
96
MiscSprayBottleofProduct1SWISBuilding
97
Liquinox5SWISBuilding
98
BufferSolutionPH73SWISBuilding
99
BufferSolutionPH101SWISBuilding
100
DominiorandGrimmDetergent1SWISBuilding
101
Airablo1SWISBuilding
102
PowderDetergent1SWISBuilding
103
Alconox3smSWISBuilding
104
Alconox1lgSWISBuilding
105
Luminox2SWISBuilding
106
Terajet2SWISBuilding
107
Alcojet1SWISBuilding
108
TrisodiumPhosphate1SWISBuilding
109
BenzoicAcid1SWISBuilding
110
NonfoamingCleanser1SWISBuilding
111
AmmoniumHydroxide1SWISBuilding
112
PotassiumPhosate1SWISBuilding
113
Phenolphtalein98.5%3SWISBuilding
114
GorillaGlue1SWISBuilding
115
WaterCheck1SWISBuilding
116
SodiumHydroxide2SWISBuilding
117
Bnzoat1SWISBuilding
Dentonium
118
RugDoctor1SWISBuilding
119
MagnesiumOxide1SWISBuilding
120
MagnesiumSulfate1SWISBuilding
121
Na0H1SWISBuilding
122
VacuVials1SWISBuilding
123
Dr.GrowFertilizer2SWISBuilding
124
AcctivatedSludge1SWISBuilding
125
1LightGreenTubMiscChemicals1SWISBuilding
126
SWISBuilding
DigitalRefractometerD09JC1
127
GlassLabTubes1BXSWISBuilding
128
GlassLabVials1SWISBuilding
129
GlassCompoundBowl1SWISBuilding
130
CODVials3BXSWISBuilding
131
PHThermometer1SWISBuilding
132
GlassFunnel1SWISBuilding
133
VolatileAcid1SWISBuilding
134
NuvoaStirPlate1SWISBuilding
135
BXSWISBuilding
DrillBits1136
FCIGasFlowMeters619053/6190562SWISBuilding
137
32GalBlackTrashcans5SWISBuilding
138
WaterHeater0910N4004671SWISBuilding
139
AmberGlassBottles2BXSWISBuilding
140
MiscLabEquip4BXSWISBuilding
141
PerformancePipeFitting1SWISBuilding
142
BallValves2BXSWISBuilding
143
LabBottles2BXSWISBuilding
Plastic144
AirRegulators1BXSWISBuilding
145
EmergencyEyeWashKits3SWISBuilding
146
Glassware1BXSWISBuilding
147
MasonJars1BXSWISBuilding
148
MassFlowMeter1BXSWISBuilding
149
AirPump1BXSWISBuilding
150
MisBoltsandStuff1BXSWISBuilding
151
PondLinerPatch\\andlittleblueballs1BXSWISBuilding
152
TechMachineGTI03003371SWISBuilding
Guava
153
StainlessPotwithThermometer1SWISBuilding
154
CabinetsGreen16SWISBuilding
155
Mirror1SWISBuilding
156
Dishwasher1SWISBuilding
157
Tables8SWISBuilding
158