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2022-11-1 Agenda and Backup
City of Denton Meeting Agenda City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com City Council Council Work Session Room & Council Chambers 2:00 PMTuesday, November 1, 2022 WORK SESSION BEGINS AT 2:00 P.M. IN THE COUNCIL WORK SESSION ROOM REGULAR MEETING BEGINS AT 6:30 P.M. IN THE COUNCIL CHAMBERS REGISTRATION GUIDELINES FOR ADDRESSING THE CITY COUNCIL Individuals may speak during a Council meeting under one of the following categories: Open Microphone: At regular meetings only, individuals can speak on any topic that is not on the agenda for no longer than four (4) minutes per individual. This portion of the meeting occurs immediately after the start of the regular meeting session. Please note, Council members cannot engage in a discussion on topics presented during this portion and there are limited slots available for this portion of the meeting. Comments on Agenda Items: Public comments can be given for any item considered by the Council, EXCEPT work session reports or closed meetings. Individuals are only able to comment one time per agenda item and cannot use more than one method to comment on a single agenda item. Public comments are limited to three (3) minutes per citizen. Public Hearing Items: Individuals are limited to four (4) minutes per public hearing item. _________________________________________________________________________________ Individuals may participate by using one of the following methods: 1. In Person for Regular or Consent Agenda Items: To provide in-person comments regular or consent agenda items (excluding public hearing items), Individuals must be present at the meeting and submit a speaker card (available at the meeting location) to the City Secretary prior to the item being called. 2. In Person for Public Hearing Items: For public hearing items, speaker cards are encouraged but not required. 3. eComment: Page 1 Printed on 10/28/2022 1 November 1, 2022City Council Meeting Agenda The agenda is posted online at https://tx-denton.civicplus.com/242/Public-Meetings-Agendas. Once the agenda is posted, a link to make virtual comments using the eComment module will be made available next to the meeting listing on the Upcoming Events Calendar. Using eComment, Individuals may indicate support or opposition and submit a brief comment about a specific agenda item. eComments may be submitted up until the start of the meeting at which time the ability to make an eComment will be closed. eComments will be sent directly to members of the City Council immediately upon submission and recorded by the City Secretary into the Minutes of the Meeting. 4. By Phone: Individuals may register to provide comments by phone. Instructions and a link to register to comment by phone will be available at www.cityofdenton.com/publicmeetings until noon of the meeting date. Residents will submit contact information using the link provided and receive further instructions via email on how to join the meeting by phone and provide comments. _________________________________________________________________________________ After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, November 1, 2022, at 2:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: WORK SESSION 1. Citizen Comments on Consent Agenda Items This section of the agenda allows citizens to speak on any item listed on the Consent Agenda prior to its consideration. Each speaker will be given a total of three (3) minutes to address any item(s). Any person who wishes to address the City Council regarding these items may do so by utilizing the "By Phone" registration process as referenced under the REGISTRATION GUIDELINES FOR ADDRESSING THE CITY COUNCIL detailed at the beginning of this agenda. Registration is required prior to the time the City Council considers this item. Registrants may call in and remain on hold or receive a call back at the time the Work Session is called to Order and are encouraged to ensure they remain accessible to accept the call. 2. Requests for clarification of agenda items listed on this agenda. 3. Work Session Reports Receive a report, hold a discussion, and give staff direction regarding the rehabilitation and future use of City Hall West. *[Council Priority; Presentation/Discussion Time: 45 minutes] ID 22-1552A. Exhibit 1 - Agenda Information Sheet Exhibit 2- City Hall West Presentation Exhibit 3 - 2022 Master Plan Survey Attachments: Receive a report, hold a discussion, and give staff direction regarding citywide regulation of criminal history information on job applications. [Estimated Presentation/Discussion Time: 45 minutes] ID 22-1761B. Page 2 Printed on 10/28/2022 2 November 1, 2022City Council Meeting Agenda Exhibit 1 - Agenda Information Sheet.pdf Exhibit 2 - Presentation.pdf Exhibit 3 - NELP 2021 Fair Chance Hiring Guide.pdf Attachments: Receive a report, hold a discussion, and give staff direction regarding the Bonnie Brae Street Project Update. [Estimated Presentation/Discussion Time: 30 minutes] ID 22-1999C. Exhibit 1 – Agenda Information Sheet Exhibit 2 - Presentation Attachments: Following the completion of the Work Session, the City Council will convene in a Closed Meeting in the Council Work Session Room to consider specific item(s) when these items are listed below under the Closed Meeting section of this agenda. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, or as otherwise allowed by law. NOTE: The City Council reserves the right to adjourn into a Closed Meeting or Executive Session as authorized by Texas Government Code, Section 551.001, et seq. (The Texas Open Meetings Act) on any item on its open meeting agenda or to reconvene in a continuation of the Closed Meeting on the Closed Meeting items noted above, in accordance with the Texas Open Meetings Act, including, without limitation Sections 551.071-551.086 of the Texas Open Meetings Act. NOTE: Any item for which a formal action at the Regular Meeting has been taken by Council may be subject to a request for a motion for reconsideration at any time during the meeting, at the Concluding Items Section, or after the meeting. In order to comply with the Texas Open Meetings Act, a request for a motion for reconsideration made during, at the end of, or after a Council meeting will be placed on the agenda and considered at the next official meeting of the City Council. _________________________________________________________________________________ AFTER DETERMINING THAT A QUORUM IS PRESENT, THE REGULAR MEETING OF THE CITY OF DENTON CITY COUNCIL WILL CONVENE AT 6:30 P.M. IN THE COUNCIL CHAMBERS AT CITY HALL, 215 E. MCKINNEY STREET, DENTON, TEXAS AT WHICH THE FOLLOWING ITEMS WILL BE CONSIDERED: 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag “Honor the Texas Flag – I pledge allegiance to thee, Texas, one state under God, one and indivisible.” 2. PROCLAMATIONS/PRESENTATIONS Proclamation: The Salvation Army’s Red Kettle Love Beyond CampaignID 22-2144A. Proclamation: Homeless and Hunger WeekID 22-2268B. 3. PRESENTATIONS FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. Page 3 Printed on 10/28/2022 3 November 1, 2022City Council Meeting Agenda B. Reports from members of the public shall be received through the following two (2) methods. A total of up to seven (7) speakers are permitted to provide public comment and may include any combination of prior registration and open microphone speakers. 1) Pre-registration. This section of the agenda permits any person who has registered in advance to make a citizen report regarding a public business item he or she wishes to be considered by the City Council. Each speaker is allowed a maximum of four (4) minutes to present their report. At the conclusion of each report, the City Council may pose questions to the speaker or may engage in discussion. If the City Council believes that a speaker's report requires a more detailed review, the City Council will give the City Manager or City Staff direction to place the item on a future work session or regular meeting agenda and advise staff as to the background materials to be desired at such meeting. Mr. Nicholas Woods regarding the degradation of the Solomon Hill neighborhood.ID 22-2259a. 2) Open Microphone. This section of the agenda permits any person who has not registered in advance for a citizen report to make comments about public business items not listed on the agenda. Such person(s) shall have registered using the “Virtual White Card” or “By Phone” process outlined by the City on its website or meeting notice. During open microphone reports under this section of the agenda, the Council may listen to citizens speak. However, because notice of the subject of the open microphone report has not been provided to the public in advance, the Texas Open Meetings Act limits any deliberation or decision by the Council to: a proposal to place the item on a future agenda; a statement of factual information; or a recitation of existing policy. Council Members may not ask the open microphone speakers questions or discuss the items presented during open microphone reports. NOTE: If audio/visual aids during presentations to Council are needed, they must be submitted to the City Secretary 24 hours prior to the meeting. 4. CONSENT AGENDA Each of these items is recommended by Staff or a board, commission, and committee. Approval thereof will be strictly on the basis of the those recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. For those items recommended by a specific board, commission, or committee, the agenda item will reference that recommendation. To view the video of the related board, commission, or committee meeting, as applicable, a link can be found within the applicable supporting documentation (Exhibit 1). Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A – AK). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, the Consent Agenda Items will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. Consider nominations/appointments to the City’s Boards, Commissions, and Committees: Public Art Committee. ID 22-1393A. Page 4 Printed on 10/28/2022 4 November 1, 2022City Council Meeting Agenda Exhibit 1 - Agenda Information Sheet B&C - 11-01-2022 Exhibit 2 - Nominations List 11-01-2022 Attachments: Consider approval of a resolution of the City of Denton adopting the City of Denton’s 2023-2024 Legislative Program; and providing an effective date. ID 22-1697B. Exhibit 1 - Agenda Information Sheet Exhibit 2 - 2023-2024 Legislative Program Exhibit 3 - Resolution Exhibit 4 - October 25 Work Session Presentation Attachments: Consider adoption of an ordinance of the City of Denton repealing Ordinance No. 21-2193 relating to the delegation of authority to the City Manager to administer Council Contingency fund spending agreements; and providing an effective date. ID 22-2270C. Exhibit 1 Agenda Information Sheet Exhibit 2 Ordinance 21-2193 Exhibit 3 Ordinance Attachments: Consider approval of a resolution of the City of Denton delegating certain administrative duties regarding the Council Contingency fund to the Community Partnership committee; and providing an effective date. ID 22-2272D. Exhibit 1 Agenda Information Sheet Exhibit 2 Resolution Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Professional Services Agreement with HDR Engineering, Inc., for professional engineering services on the Lead and Copper Public Outreach and Crisis Communication Plan for the Water Utilities Department as set forth in the contract; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7574-019 - Professional Services Agreement for engineering services awarded to HDR Engineering, Inc., in the not-to-exceed amount of $217,106.50). The Public Utilities Board recommends approval (6 - 0). ID 22-2193E. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Ordinance and Contract Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Altec Industries, Inc., through the Sourcewell Cooperative Purchasing Network Contract Number 110421-ALT, for the acquisition of Altec model Digger Derricks, Bucket Trucks, & Utility Equipment for the Electric Distribution, Electric Operations, Traffic, and Parks Departments; authorizing the expenditure of funds therefor; and providing an effective date (File 8130 - awarded to Altec Industries, Inc., in the five (5) year not-to-exceed amount of $3,000,000.00). The Public Utilities Board recommends approval (6 - 0). ID 22-2196F. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Ordinance Attachments: Page 5 Printed on 10/28/2022 5 November 1, 2022City Council Meeting Agenda Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with KS2 Technologies, Inc., for the renewal of maintenance and vendor support services for the KS2 Reporting Tool and associated software modules for the Technology Services Department, which is the sole provider of this software, in accordance with Texas Local Government Code Chapter 252.022, which provides that procurement of commodities and services that are available from one source are exempt from competitive bidding, and if over $50,000, shall be awarded by the governing body; providing for the expenditure of funds therefor; and providing an effective date (File 8073-awarded to KS2 Technologies, Inc., for one (1) year, with the option for four (4) additional one (1) year extensions, in the total five (5) year not-to-exceed amount of $150,000.00). ID 22-2197G. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Ordinance and Contract Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the approval of Change Order No. 4 to the contract between the City of Denton and 2L Construction, LLC, for the construction of the West Hickory Street Paving, Lighting & Drainage Improvements Project for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (IFB 7163 - Change Order No. 4 in the not-to-exceed amount of $219,543.05 for a total contract award aggregated to $2,139,047.00). ID 22-2198H. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Original Ordinance and Contract Exhibit 3 - Change Order Nos. 1-3 Exhibit 4 - LLC Members Exhibit 5 - Ordinance and Change Order 4 Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Amperon Holdings, Inc., for load forecasting services for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 8024 - awarded to Amperon Holdings, Inc., in the three (3) year not-to-exceed amount of $252,000.00). The Public Utilities Board recommends approval (6 - 0). ID 22-2199I. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Pricing Evaluation Exhibit 3 - Ordinance and Contract Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Maxar Intelligence, Inc., for weather forecasting services and renewables forecasting services for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 8024 - awarded to Maxar Intelligence, Inc., in the three (3) year not-to-exceed amount of $200,000.00). The Public Utilities Board recommends approval (6 - 0). ID 22-2200J. Page 6 Printed on 10/28/2022 6 November 1, 2022City Council Meeting Agenda Exhibit 1 - Agenda Information Sheet Exhibit 2 - Pricing Evaluation Exhibit 3 - Ordinance and Contract Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Red Wing Brands of America, Inc. through the U.S. General Services Administration's (GSA) MAS schedule 47QSWA22D00AB, for Safety Foot Wear for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (File 8144 - awarded to Red Wing Brands of America, Inc. in a not-to-exceed amount of $750,000.00). ID 22-2250K. Exhibit 1 - Agenda Infromation Sheet Exhibit 2 - Cooperative Pricing Exhibit 3 - Ordinance Attachments: 5. ITEMS FOR INDIVIDUAL CONSIDERATION Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc., for the design services of Neighborhoods 2 and 6 for the Capital Projects/Engineering Department as set forth in the contract; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7599-010 - Professional Services Agreement for design services awarded to Kimley-Horn and Associates, Inc., in the not-to-exceed amount of $5,726,000.00). The Public Utilities Board recommends approval (6 - 0). ID 22-2192A. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Presentation Exhibit 3 - Ordinance and Contract Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Construction Manager at Risk contract with Sundt Construction, Inc., for pre-construction services of Neighborhood 2 & 6 Improvements for the Capital Projects Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 8055 - awarded to Sundt Construction, Inc., in the not-to-exceed amount of $452,147.00). The Public Utilities Board recommends approval (6 - 0). ID 22-2195B. Exhibit 1 - Agenda Information Sheet Exhibit 2 - Pricing Evaluation Exhibit 3 - Ordinance and Contract Exhibit 4 - Presentation Attachments: Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Mountain Cascade of Texas, LLC, for the construction of the I-35E-Mayhill Utility Relocations Project for the Water/Wastewater Utilities and Capital Projects/Engineering Department; providing ID 22-2194C. Page 7 Printed on 10/28/2022 7 November 1, 2022City Council Meeting Agenda for the expenditure of funds therefor; and providing an effective date (RFQ 7968-001 - awarded to Mountain Cascade of Texas, LLC, in the not-to-exceed amount of $15,008,997.15). The Public Utilities Board recommends approval (6 - 0). Exhibit 1 - Agenda Information Sheet Exhibit 2 - Bid Tabulation Exhibit 3 - LLC Members Exhibit 4 - Ordinance and Contract Exhibit 5 - Presentation Attachments: 6. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting topics, above posted. C E R T I F I C A T E I certify that the above notice of meeting was posted on the official website (https://tx-denton.civicplus.com/242/Public-Meetings-Agendas) and bulletin board at City Hall, 215 E. McKinney Street, Denton, Texas, on October 28, 2022, in advance of the 72-hour posting deadline, as applicable, and in accordance with Chapter 551 of the Texas Government Code. __________________________________________ CITY SECRETARY NOTE: THE CITY OF DENTON'S DESIGNATED PUBLIC MEETING FACILITIES ARE ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE ACCOMMODATION, SUCH AS SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED, IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 940-349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT REASONABLE ACCOMMODATION CAN BE ARRANGED. Page 8 Printed on 10/28/2022 8 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-1552,Version:1 AGENDA CAPTION Receive a report,hold a discussion,and give staff direction regarding the rehabilitation and future use of City Hall West. *[Council Priority; Presentation/Discussion Time: 45 minutes] City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™9 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Facilities CM/DCM/ACM: Christine Taylor DATE: November 1, 2022 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the rehabilitation and future use of City Hall West. BACKGROUND The City Hall West Steering Committee was formally established in 2017. The committee was comprised of Council Member Duff, Council Member Hudspeth, and Council Member Ryan, and 21 citizens. On November 13, 2018, staff presented the final recommendation from the committee to the Council, which included an adaptive restoration of the building into a multipurpose arts facility with space available for rentals to provide partial cost recovery. The consensus of the Council was to proceed with minor changes, including the replacement of the windows. On August 23, 2021, staff issued a Request for Information (RFI) to gather the level of interest and financial commitments by for-profit and non-profit entities. The RFI Invitation was sent to 1,611 suppliers, but the City only received one (1) response from Hickory & Rail Ventures LLC On January 22, 2022, the City entered into a contract with Architexas: • Interior Selection Demolition Planning Services • Master Planning Services • Programming Services EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Presentation Exhibit 3: 2022 Master Plan Survey Respectfully submitted: Trevor Crain, PMP. 940-349-7426 Interim Director of Facilities City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 10 11 Denton City Hall West Master Plan ID 22-1552 City Council Work Session November 1, 2022 1 November 1, 2022 ID # 22-1552 12 Agenda •Project History •Building History •Master Plan Recommended Building Uses •Successful Comparable Projects •Benefit and Considerations •Estimated Construction Costs •Next Steps •Questions November 1, 2022 ID # 22-1552 2 13 Project History The CHW Steering Committee was formally established in 2017 The committee was comprised of Council Member Duff, Council Member Hudspeth, and Council Member Ryan, and 21 citizens. On November 13, 2018, staff presented the final recommendation from the committee to the Council, which included an adaptive restoration of the building into a multipurpose arts facility with space available for rentals to provide partial cost recovery. The consensus of the Council was to proceed with minor changes, including the replacement of the windows. On August 23, 2021, staff issued a Request for Information (RFI) to gather the level of interest and financial commitments by for-profit and non-profit entities. The RFI Invitation was sent to 1,611 suppliers, but the City only received one (1) response from Hickory & Rail Ventures LLC On January 22, 2022, the City entered into a contract with Architexas: •Interior Selection Demolition Planning Services •Master Planning Services •Programming Services November 1, 2022 ID # 22-1552 3 14 Building History •Built-in 1927, Completed in 1931 •Vacant since 2016 •Spanish Renaissance Revival Style •Historic Designations Recorded Texas Historic Landmark City of Denton Landmark •Housed municipal services, Civic Auditorium, and a Fire Station •Three significant renovations/additions have been completed since 1959; Central Fire Station, 1980 Police Station, and 1996 City offices. November 1, 2022 ID # 22-1552 4 15 National Register Historic District Denton Square DistrictCity Hall West Building History Retail & Restaurant Civic Buildings Arts & Entertainment November 1, 2022 ID # 22-1552 5 16 FIRE APPARATUS ROOM ORIGINAL AUDITORIUM FLEXIBLE / MEP FLEXIBLE FLEXIBLE ELEV RR FLEXIBLE ELEV RR BALCONY Historic Building Use & Spaces Gross Square Foot/Floor +Level A/B 8,448 SF +Level C/D 8,555 SF +Level E/F 6,427 SF Total 23,430 GSF Net Square Foot/Floor +Level A/B 6,432 SF +Level C/D 5,558 SF +Level E/F 4,537 SF Total 16,527 GSFAB CD E F BasementGround Flr Infill Floor First Flr Infill Floor Second Flr Balcony November 1, 2022 ID # 22-1552 6 17 City Hall West was built for the specific use of being a grand civic building which limits space efficiency and adaptability of use. Option 1 Multi-purpose Arts Facility & Rental Space •Performance Auditorium 4,900 square feet •Event Space & Courtyard 3,440 square feet •Multipurpose Space 6,445 square feet Option 2 Municipal Service Office Space & Rental Space •Council Chamber & Community Auditorium 4,900 square feet •Event Space & Courtyard 3,440 square feet •Municipal Offices (30-40)6,445 square feet Master Plan Building Use Options November 1, 2022 ID # 22-1552 7 18 Sulphur Springs City Hall Former Historic Post Office •Threatened building, Prominent location •City purchased and restored •City Offices, Council Chambers •5,000 sf McKinney Performing Arts Center Former Historic County Courthouse •City purchased and restored •City Managed •Performing Arts, Art rental space, Event rental •25,635 sf Successful Comparable Projects November 1, 2022 ID # 22-1552 8 19 Ground / Basement Level (A/B) Event Space North Courtyard •Men & Women's Toilets •Mechanical •Storage •Accessible entry •Break Area Master Plan Building Use Options November 1, 2022 ID # 22-1552 9 20 Master Plan Building Use Options Lobby & First Floor (C/D) Auditorium •200 -230 Seats •Performance Rental •Council Chamber Restored Entrance Lobby & Stair Multi Use Space or Offices •Art Gallery/ Museum •Studio/Creative Space •Offices (15-20) November 1, 2022 ID # 22-1552 10 21 Master Plan Building Use Options Second Floor (E) Multi Use Space or Offices (15-20) Balcony (F) Restored Balcony Seating November 1, 2022 ID # 22-1552 11 22 Exterior Enhancements •Loading zone at N Elm (East) •Enhanced entrance •Rentable North Courtyard Master Plan Building Use Options 12November 1, 2022 ID # 22-1552 23 •Maintains public access •Active use of Denton historic landmark •Active use of restored historic auditorium •Contributing to Original Denton District •Potential offsetting revenue through rental space (Auditorium, Event Space, Multi Purpose or Office) Benefits Benefits and Considerations Considerations •The City is currently undergoing a Facility Master Plan –FTE Growth projected at approximately 46 FTEs per fiscal year or 2.8% –Existing City Facilities 98% occupied •Future Bond Program –Facilities Focus •Ongoing operating subsidy November 1, 2022 ID # 22-1552 13 24 Estimate at Completion Category One Time Ongoing Estimated Construction & Soft Costs (2022 estimate)7,400,000 - Site Work 850,000 - FF&E 400,000 - Project Management 350,000 - Sub Total 9,000,000 Operating Subsidy -+/-500,000 Contingency 5%450,000 Estimated Total $ 9,450,000 +/-$ 500,000 •Capital Funding will be discussed in December 2022 (2023 Bond Program Work Session) •Operating Subsidy would be considered as an FY 2023-24 Budget Supplemental •Costs above are for a full building rehabilitation including completed scope. •Inflation estimated to be 1% per month November 1, 2022 ID # 22-1552 14 25 •Today –Direction on Building Use •December 2022 –Facilities Master Plan Update •December 2022 –Work Session on Future Bond Program –Facilities Focus Next Steps 15November 1, 2022 ID # 22-1552 26 City Hall West was built for the specific use of being a grand civic building which limits space efficiency and adaptability of use. Option 1 Multi-purpose Arts Facility & Rental Space •Performance Auditorium 4,900 square feet •Event Space & Courtyard 3,440 square feet •Multipurpose Space 6,445 square feet Option 2 Municipal Service Office Space & Rental Space •Council Chamber & Community Auditorium 4,900 square feet •Event Space & Courtyard 3,440 square feet •Municipal Offices (30-40)6,445 square feet Master Plan Building Use Options 16November 1, 2022 ID # 22-1552 27 Questions 17November 1, 2022 ID # 22-1552 28 Survey Findings (89 Responses) + Strong Support of Multi-Use Arts Facility + Restore Character defining features + Most pressing needs of the art community: -Rehearsal Space -Performance Space -Studio Space -Event Space +The city should maintain ownership of the building and lease to qualified tenants + The reuse of the building should be a priority for the city Community Outreach Survey (June 2022 –September 2022) 29 Community Outreach Survey (June 2022 –September 2022) 1. How important is it to rehabilitate and restore historic City Hall West 2. What is the best re-use of the building? 30 Community Outreach Survey (June 2022 –September 2022) 3. Is it important to restore the character defining features like the auditorium and lobby? 4. What are the Art Community’s most pressing needs for space? 31 Community Outreach Survey (June 2022 –September 2022) 5. Is it important to restore the character defining features like the auditorium and lobby? 6. Select the statement you most strongly agree with: 32 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-1761,Version:1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding citywide regulation of criminal history information on job applications. [Estimated Presentation/Discussion Time: 45 minutes] City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™33 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: City Manager’s Office CM/DCM/ACM: Sara Hensley, City Manager DATE: Nov. 1, 2022 SUBJECT Receive a report, hold a discussion, and give staff direction regarding citywide regulation of criminal history information on job applications. BACKGROUND On Aug. 2, 2022, Council Member McGee presented a 2-minute policy pitch to the Council requesting support for a work session to discuss an ordinance regulating the use of criminal history questions on job applications. As pitched, the ordinance would apply to employers citywide and, generally, could mirror similar “fair chance hiring” or “ban the box” ordinances adopted in other cities or states. A future work session on this topic was supported. Fair chance hiring initiatives (also known as “ban the box” initiatives due to their goal of removing criminal history question boxes in job applications) generally refer to a policy or practice of not considering an applicant’s criminal history in an employment application until later in the hiring process. This information is then typically obtained once a conditional offer has been made. Importantly, these initiatives and their related ordinances, do not limit the authority of an employer to withdraw an employment offer for a lawful reason. According to National Employment Law Project (NELP), 37 states and 150 cities/counties enacted fair chance laws for themselves as public employers. Of these, 15 states and 22 cities/counties extend these to private employers. Existing Laws and Statutes Title VII of the Civil Rights Act of 1964, does not restrict employers from requesting criminal history information, provided it does not result in unequal treatment with respect to a protected class. To avoid discrimination, employers may conduct an individualized assessment of a candidate’s criminal record. Additionally, some federal and state laws require a criminal background check to be performed for some positions. These include peace officers, Criminal Justice Information Services (CJIS) certifications, and certain positions in other sectors such as insurance, childcare, energy, etc. There is no requirement as to when a criminal background check should be performed under these statutes. With respect to criminal history inquiries across all job types, no federal or State of Texas laws prohibit inquiring about an applicant’s criminal history prior to a conditional employment offer though the Equal Employment Opportunity Commission (EEOC) best practice recommendations suggest employers consider asking criminal history questions later in the hiring process. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 34 Local Regulation of Criminal History Questions Many businesses may, to some degree, utilize fair chance hiring practices due to existing corporate requirements or utilization of best practices. As an example, the City of Denton as an employer does not inquire about criminal history or conduct a background check until after a conditional offer of employment has been made. Most cities and counties listed with NELP as having enacted fair chance hiring laws have only had those laws apply to their organization as an employer. An even greater number may utilize this practice outside of a formal ordinance, like the City of Denton. In Texas, the following cities have enacted formal laws relating to fair chance hiring: Applies Only to Organization Applies Across Jurisdiction Dallas County City of Austin City of San Antonio City of DeSoto Travis County Harris County (2022) Potential Ordinance Considerations An ordinance that regulates criminal history information on job applications would, at minimum, provide for definitions of key terms, which employers are subject to the ordinance and which may be exempt, how the ordinance is administered, and how the process for addressing violations of the ordinance. Exclusions to a fair chance hiring ordinance may include other governmental entities that the City of Denton does not have authority to regulate (such as Denton County, Denton Independent School District, and local state universities), positions where federal, state, or other local law requires disqualification based on criminal history, and entities with less than 15 full-time employees (as done with the recent comprehensive non-discrimination ordnance). Feedback from Businesses Staff reached out to local businesses through the Denton Chamber of Commerce’s Government Relations Committee. The business representatives were briefed on the topic and provided an opportunity to give feedback. Overall, they communicated that they did not generally support a fair chance hiring ordinance, but did express support for voluntary programs. Feedback on a potential ordinance focused on: • Concern if an ordinance is a solution in search of a problem • Concern for the economic impact of restarting hiring processes • Discussion if there were better ways to promote “second chance” hiring • Challenges in communication to businesses the requirements of an ordinance Implementation The City does not have the capacity to conduct investigations and the use of a third party to conduct investigations of ordinance violations may be required. Implementation of the ordinance could follow the model set out in the non-discrimination ordinance where a complaint is submitted to the City, the City refers the complaint to a third-party investigator, and referral of the investigation report to the City Prosecutor for possible citation (if criminal penalty provision included). Additionally, the City could anticipate similar enforcement challenges as advised during the development of the comprehensive non-discrimination ordinance. 35 OPTIONS 1. Direction to provide a draft ordinance for further review and discussion at a future work session 2. Direction to provide additional information at a future work session 3. No direction PRIOR ACTION/REVIEW (Council, Boards, Commissions) Aug. 2, 2022 Work Session (2-minute Policy Pitch) FISCAL INFORMATION Undetermined at this time EXHIBITS 1. Agenda Information Sheet 2. Presentation 3. National Employment Law Project (NELP) 2021 Fair Chance Hiring Guide Respectfully submitted: Ryan Adams Chief of Staff 36 Citywide Fair Chance Hiring Ordinance Ryan Adams Nov. 1, 2022 37 Background •2-Minute Policy Pitch: •Council member McGee requested a work session for the Council to discuss a Fair Chance Hiring ordinance that would apply to employers within the City limits. •Delivered and supported by Council on August 2, 2022 22-1761; Nov. 1, 2022 2 38 Fair Chance Hiring Ordinances in General •Fair Chance Hiring (aka, “Ban the Box”), generally: •The policy or practice of not considering an applicant’s criminal history in an employment application until later in the hiring process. •Does not limit authority to withdraw employment offer for a lawful reason •According to National Employment Law Project (NELP), •37 states and 150 cities/counties enacted fair chance laws for themselves as public employers •Of these, 15 states and 22 cities/counties extend these to private employers 22-1761; Nov. 1, 2022 3 39 Existing State and Federal Requirements •Title VII of the Civil Rights Act of 1964 •Employers can request criminal history information, provided it does not result in unequal treatment with respect to a protected class •To avoid discrimination, employers conduct an individualized assessment of candidate’s criminal record •Some federal and state laws require a criminal background check be performed for some positions •Peace officers, CJIS certifications, insurance, childcare, energy, etc. •No requirement as to when this should be performed within the statute 22-1761; Nov. 1, 2022 4 40 Existing State and Federal Requirements •No federal or State of Texas laws prohibit inquiring about an applicant’s criminal history prior to a conditional employment offer •EEOC best practice recommendations suggest employers consider asking criminal history questions later in the hiring process 22-1761; Nov. 1, 2022 5 41 Local Regulation of Fair Chance Hiring •Businesses may, to some degree, utilize Fair Chance Hiring due to existing corporate requirements or utilization of best practices •The City of Denton as an employer does not inquire about criminal history or conduct a background check until after a conditional offer of employment has been made •Most cities/counties listed with NELP have enacted Fair Chance Hiring laws that apply only to their organization as an employer •An even greater number may utilize this practice outside of a formal ordinance, like the City of Denton 22-1761; Nov. 1, 2022 6 42 Local Regulation of Fair Chance Hiring •In Texas, the following cities have enacted formal laws relating to Fair Chance Hiring: Applies Only to Organization Applies Across Jurisdiction Dallas County City of Austin City of San Antonio City of DeSoto Travis County Harris County (2022) 22-1761; Nov. 1, 2022 7 43 Potential Ordinance Considerations •Definitions •Applicability and Exemptions •Requirements •Administration •Investigation •Penalty 22-1761; Nov. 1, 2022 8 44 Potential Exclusions/Exemptions •Other governmental entities •County, school districts, higher education, etc. •Positions where federal, state, or other local law requires disqualification based on criminal history •Entities with less than 15 full-time employees 22-1761; Nov. 1, 2022 9 45 Early Feedback from Businesses •Staff reached out to local businesses through the Chamber •Did not generally support a fair chance hiring ordinance •Expressed support for voluntary programs •Feedback on a potential ordinance focused on: •Concern if this is a solution without a problem •Economic impact of restarting hiring processes •If there were better ways to promote second-chance hiring •Public education may be a challenge 22-1761; Nov. 1, 2022 10 46 Implementation Considerations •The City does not have the capacity to conduct investigations •Implementation could follow the model set out in the non- discrimination ordinance: •Complaint submitted to City •City refers the complaint to a third-party investigator •Referral of investigation to City Prosecutor for possible citation (if criminal penalty provision included) •Would anticipate similar enforcement challenges as advised during the development of the non-discrimination ordinance 22-1761; Nov. 1, 2022 11 47 Direction •Options for Council Direction 1.Direction to provide a draft ordinance for further review and discussion at a future work session 2.Direction to provide additional information at a future work session 3.No direction 4.Other 22-1761; Nov. 1, 2022 12 48 GUIDE Ban the Box U.S. Cities, Counties, and States Adopt Fair-Chance Policies to Advance Employment Opportunities for People with Past Convictions Beth Avery Han Lu October 2021 Fair Chance Employment 49 NELP | NATIONAL EMPLOYMENT LAW PROJECT | 90 BROAD STREET, SUITE 1100, NEW YORK, NY 10004 | WWW.NELP.ORG Acknowledgements NELP thanks the Public Welfare Foundation for its contributions in support of this work. The photographs that appear in this document were taken by LA Voice, featuring a rally in support of fair hiring legislation in Los Angeles organized by A New Way of Life, All of Us or None, LA Voice, Homeboy Industries, and allied organizations. Thanks also to NELP chief of programs Michelle Natividad Rodriguez, former NELP staff attorney Madeline Neighly, and numerous NELP law clerks for their contributions to this publication. The NELP team remains grateful to many colleagues, allies, and advocates for their efforts to further this work across the nation. About NELP For over 50 years, the National Employment Law Project (NELP) has worked to restore the promise of economic opportunity for working families across America. In partnership with grassroots and national allies, NELP promotes policies to create good jobs, enforce hard-won workplace rights, and help unemployed workers regain their economic footing. For more information, visit us at www.nelp.org. © 2021 National Employment Law Project. This report is covered by the Creative Commons “Attribution- NonCommercial-NoDerivs” license fee (see http://creativecommons.org/licenses). For further inquiries, please contact NELP (nelp@nelp.org). . 50 NELP | BAN THE BOX – FAIR CHANCE GUIDE Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. List of All Ban-the-Box & Fair-Chance Laws and Policies by State . . . . . . 3 2. State Ban-the-Box & Fair-Chance Laws and Policies. . . . . . . . . . . . . . . . . 7 3. Table Summarizing Ban-the-Box & Fair-Chance States. . . . . . . . . . . . . . 23 4. Private-Employer Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 5. Local Ban-the-Box & Fair-Chance Laws and Policies. . . . . . . . . . . . . . . . 28 6. Table Summarizing All State and Local Ban-the-Box & Fair-Chance Laws and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Contents 51 NELP | BAN THE BOX – FAIR CHANCE GUIDE 2 ationwide, 37 states and over 150 cities and counties have adopted what is widely known as “ban the box” so that employers consider a job candidate’s qualifications first—without the stigma of a conviction or arrest record. Borne out of the work of All of Us or None, these policies provide applicants a fair chance at employment by removing conviction and arrest history questions from job applications and delaying background checks until later in the hiring process. This resource guide documents the numerous states and localities that have taken steps to remove barriers to employment for qualified workers with records. A chart summarizing all state and local policies across the nation appears at the end of this guide. Support for fair-chance policies has gained momentum in recent years, with policies adopted at not only the state and local levels, but also by the federal government: • In November 2015, President Obama endorsed ban-the-box by directing federal agencies to delay inquiries into job applicants’ records until later in the hiring process. • In December 2019, the “Fair Chance to Compete for Jobs Act of 2019” became law as part of the National Defense Authorization Act. Effective December 2021, the law will prohibit most federal agencies and contractors from requesting information on a job applicant’s arrest and conviction record until after conditionally offering the job to the applicant. For more information, see NELP’s press release and FAQ fact sheet. Representing nearly every region of the country, a total of 37 states have adopted statewide laws or policies applicable to public-sector employment—Arizona (2017), California (2017, 2013, 2010), Colorado (2019, 2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawai’i (1998), Illinois (2014, 2013), Indiana (2017), Kansas (2018), Kentucky (2017), Louisiana (2016), Maine (2021, 2019), Maryland (2020, 2013), Massachusetts (2010), Michigan (2018), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Hampshire (2020), New Jersey (2014), New Mexico (2019, 2010), New York (2015), North Carolina (2020), North Dakota (2019), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2020, 2015), Washington (2018), and Wisconsin (2016). N The federal government embraced “ban the box” for federal agencies and contractors. 37 states, the District of Columbia, and over 150 cities and counties have adopted a ban-the-box (“fair chance”) policy. Introduction 52 NELP | BAN THE BOX – FAIR CHANCE GUIDE 3 Extending fair chance policies beyond government employment to the private sector is a crucial step toward ensuring that people with records have a fair chance at employment in the majority of jobs. Numerous states and localities have taken further action by banning the box for government contractors and private employers. • Fifteen states have mandated the removal of conviction history questions from job applications for private employers—California, Colorado, Connecticut, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. • The District of Columbia and 37 cities and counties extend their fair-chance hiring policies to government contractors (as will the federal government in 2021). • Twenty-two of those localities also extend their local fair-chance hiring laws to the private employers within their jurisdictions—Austin, Baltimore, Buffalo, Chicago, Columbia (MO), Desoto (TX), the District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, Spokane (WA), St. Louis, Waterloo (IA), Suffolk County (NY), and Westchester County (NY). More jurisdictions are also adopting policies that do more than “ban the box” by removing the conviction history question from job applications. Many incorporate the best practices set forth in the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance on the use of arrest and conviction records in employment decisions. Others adopt innovative strategies such as targeted hiring. Robust fair-chance hiring laws delay records-related inquiries until after a conditional offer of employment and ensure a fairer decision-making process by requiring employers to consider the job- relatedness of a conviction, time passed, and mitigating circumstances or rehabilitation evidence. Tallying up the population of the states and localities that have adopted a fair-chance law or policy, over 267 million people in the United States—more than four-fifths of the U.S. population—live in a jurisdiction with some form of ban-the-box or fair-chance policy. Fair-chance policies benefit everyone, not just people with records, because they’re good for families, local communities, and the overall economy. At an event in Oakland for employers to discuss reentry issues, one business owner spoke to the personal benefit of hiring people with records. “I’ve seen how a job makes all the difference,” says Derreck B. Johnson, founder and president of Home of Chicken and Waffles in Oakland. “When I give someone a chance, and he becomes my best employee, I know that I’m doing right by my community.” 15 states and 22 cities and counties extend their fair-chance laws to private employment. Four-fifths of the U.S. population lives in a jurisdiction that has banned the box. 53 NELP | BAN THE BOX – FAIR CHANCE GUIDE 4 Are you looking to support a state or local effort to enact or strengthen a fair-chance policy? Check out NELP’s Fair Chance – Ban the Box Toolkit, which provides a step-by- step guide for advocates desiring to launch a ban-the-box campaign. Embedded in the toolkit is a range of resources to help draft a law, build your network, support your outreach, and develop your media plan. Here are just a few of those NELP resources: ▪ A one-page factsheet explains the basics of the policy. ▪ A Best Practices and Model Policies guide provides model laws. ▪ The Research Summary is a compilation of supportive studies and statistics. Please visit NELP’s “fair chance licensing” webpage for information on the related topic of unfair occupational licensing restrictions that can bar people with records from entire professions before they submit a single job application. For additional information, contact senior staff attorney Beth Avery at bavery@nelp.org 54 NELP | BAN THE BOX – FAIR CHANCE GUIDE 5 ALABAMA BIRMINGHAM, AL ARIZONA (state policy) GLENDALE, AZ MARICOPA COUNTY, AZ PHOENIX, AZ PIMA COUNTY, AZ TEMPE, AZ TUCSON, AZ ARKANSAS PULASKI COUNTY, AR CALIFORNIA (state law) ALAMEDA COUNTY, CA BERKELEY, CA CARSON, CA COMPTON, CA EAST PALO ALTO, CA LOS ANGELES, CA OAKLAND, CA PASADENA, CA RICHMOND, CA SACRAMENTO, CA SAN FRANCISCO, CA SANTA CLARA COUNTY, CA COLORADO (state law) DENVER, CO CONNECTICUT (state law) BRIDGEPORT, CT HARTFORD, CT NEW HAVEN, CT NORWICH, CT DELAWARE (state law) NEW CASTLE COUNTY, DE WILMINGTON, DE DISTRICT OF COLUMBIA (WASHINGTON D.C.) (law) FLORIDA BROWARD COUNTY, FL CLEARWATER, FL DAYTONA BEACH, FL FORT MYERS, FL GAINESVILLE, FL JACKSONVILLE, FL MIAMI-DADE COUNTY, FL ORLANDO, FL POMPANO BEACH, FL ST. PETERSBURG, FL TAMARAC, FL TAMPA, FL TALLAHASSEE, FL SARASOTA, FL GEORGIA (state policy) ALBANY, GA ATLANTA, GA AUGUSTA, GA CHEROKEE COUNTY, GA COLUMBUS, GA FULTON COUNTY, GA MACON-BIBB COUNTY, GA SAVANNAH, GA SOUTH FULTON, GA HAWAI’I (state law) IOWA JOHNSON COUNTY, IA LINN COUNTY, IA WATERLOO, IA ILLINOIS (state law) CHICAGO, IL INDIANA (state policy) INDIANAPOLIS, IN List of All Ban-the-Box & Fair-Chance Laws and Policies by State 55 NELP | BAN THE BOX – FAIR CHANCE GUIDE 6 KANSAS (state policy) JOHNSON COUNTY, KS KANSAS CITY, KS TOPEKA, KS KENTUCKY (state policy) LOUISVILLE, KY LOUISIANA (state law) BATON ROUGE, LA NEW ORLEANS, LA MARYLAND (state law) BALTIMORE, MD MONTGOMERY COUNTY, MD PRINCE GEORGE’S COUNTY, MD MAINE (state law) MASSACHUSETS (state law) BOSTON, MA CAMBRIDGE, MA WORCESTER, MA MICHIGAN (state policy) ANN ARBOR, MI DETROIT, MI EAST LANSING, MI GENESEE COUNTY, MI KALAMAZOO, MI MUSKEGON COUNTY, MI MINNESOTA (state law) MINNEAPOLIS, MN ST. PAUL, MN MISSOURI (state policy) COLUMBIA, MO JACKSON COUNTY, MO KANSAS CITY, MO ST. LOUIS, MO NEBRASKA (state law) NEVADA (state law) NORTH LAS VEGAS NEW HAMPSHIRE (state law) NEW JERSEY (state law) ATLANTIC CITY, NJ NEWARK, NJ NEW MEXICO (state law) NEW YORK (state policy) ALBANY COUNTY, NY BUFFALO, NY DUTCHESS COUNTY, NY ITHACA, NY KINGSTON, NY NEWBURGH, NY NEW YORK, NY ROCHESTER, NY SUFFOLK COUNTY, NY SYRACUSE, NY TOMPKINS COUNTY, NY ULSTER COUNTY, NY WESTCHESTER COUNTY, NY WOODSTOCK, NY YONKERS, NY NORTH CAROLINA (state policy) ASHEVILLE, NC BUNCOMBE COUNTY, NC CARRBORO, NC CHARLOTTE, NC CUMBERLAND COUNTY, NC DURHAM CITY, NC DURHAM COUNTY, NC FORSYTH COUNTY, NC MECKLENBURG COUNTY, NC NEW BERN, NC NEW HANOVER COUNTY, NC SPRING LAKE, NC WAKE COUNTY, NC WILMINGTON, NC 56 NELP | BAN THE BOX – FAIR CHANCE GUIDE 7 WINSTON-SALEM, NC NORTH DAKOTA (state law) OHIO (state law) ALLIANCE, OH AKRON, OH CANTON, OH CINCINNATI, OH CLEVELAND, OH CUYAHOGA COUNTY, OH DAYTON, OH FRANKLIN COUNTY, OH HAMILTON COUNTY, OH LUCAS COUNTY, OH MASSILLON, OH NEWARK, OH STARK COUNTY, OH SUMMIT COUNTY, OH WARREN, OH YOUNGSTOWN, OH OKLAHOMA (state policy) OREGON (state law) MULTNOMAH COUNTY, OR PORTLAND, OR PENNSYLVANIA (state policy) ALLEGHENY COUNTY, PA ALLENTOWN, PA BEAVER COUNTY, PA BETHLEHEM, PA LANCASTER, PA NORTHAMPTON COUNTY, PA PHILADELPHIA, PA PITTSBURGH, PA READING, PA YORK, PA RHODE ISLAND (state law) PROVIDENCE, RI SOUTH CAROLINA AIKEN, SC COLUMBIA, SC RICHLAND COUNTY, SC YORK COUNTY, SC TENNESSEE (state law) CHATTANOOGA, TN HAMILTON COUNTY, TN MEMPHIS, TN NASHVILLE, TN TEXAS AUSTIN, TX DALLAS COUNTY, TX DESOTO, TX SAN ANTONIO, TX TRAVIS COUNTY, TX UTAH (state law) VERMONT (state law) VIRGINIA (state law) ALEXANDRIA, VA ARLINGTON COUNTY, VA BLACKSBURG, VA CHARLOTTESVILLE, VA DANVILLE, VA FAIRFAX COUNTY, VA FREDERICKSBURG, VA HARRISONBURG, VA HENRY COUNTY, VA MONTGOMERY COUNTY, VA NEWPORT NEWS, VA NORFOLK, VA PETERSBURG, VA PORTSMOUTH, VA PRINCE WILLIAM COUNTY, VA RICHMOND, VA ROANOKE, VA STAUNTON, VA VIRGINIA BEACH, VA 57 NELP | BAN THE BOX – FAIR CHANCE GUIDE 8 WASHINGTON (state law) PIERCE COUNTY. WA SEATTLE, WA SPOKANE, WA SPOKANE COUNTY, WA WISCONSIN (state law) DANE COUNTY, WI MADISON, WI MILWAUKEE, WI MILWAUKEE COUNTY, WI 58 NELP | BAN THE BOX – FAIR CHANCE GUIDE 9 (Listed in alphabetical order.) 1. ARIZONA EXECUTIVE ORDER (2017) (APPLIES TO EMPLOYMENT IN THE EXECUTIVE BRANCH) On November 6, 2017, Governor Doug Ducey (R) issued Executive Order 2017-07, which prohibits certain state agencies from inquiring into an applicant’s conviction or arrest history until after submission of a job application and an initial interview. Exceptions exist, however, for positions for which state or federal law prohibits a person from holding the job because of a past offense. The order also clarifies that convictions of certain crimes may preclude an applicant from holding certain positions. By July 1, 2018, the Department of Administration and Office of Economic Opportunity shall recommend how to measure the success of the executive order. Commentary: When signing the order, Governor Ducey stated, “All Arizonans—no matter their background or past mistakes—deserve the chance to make a living and a better life for themselves and their families. If you served your time and paid your debt to society, you should have the opportunity at a real second chance. This is not only right, it will mean more people with jobs, and less people returning to prison.” 2. CALIFORNIA ASSEMBLY BILL 1008 (2017) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Signed on October 14, 2017 by Governor Edmund “Jerry” Brown (D), AB 1008 (the “California Fair Chance Act”) requires public- and private-sector employers to delay any conviction background check as well as any questions about or consideration of a job applicant’s conviction history until after the employer extends a conditional offer of employment to the applicant. When reviewing any conviction history, the law requires employers to conduct an “individualized inquiry” by considering at least the amount of time elapsed since the conviction, the nature of the conviction, and whether the conviction is directly job related (i.e., the EEOC factors). The law also requires written preliminary notice to the job applicant of the employer’s intent to rescind the conditional job offer; time for the applicant to respond with evidence of inaccuracies in the record, rehabilitation, or mitigating circumstances; and final written notice rescinding the job offer. With limited exceptions, AB 1008 applies to private and public employers with at least five employees. Implementing regulations were finalized in 2020 and take effect October 1, 2020. The bill was sponsored by the National Employment Law Project, Legal Services for Prisoners with Children, All of Us or None, and the Time for Change Foundation. The bill was introduced by Asm. Kevin McCarty (D). For more information, see the press release and worker and employer factsheets issued by the sponsoring organizations. Commentary: AB 1008 (2017) replaced AB 218 (2013), a law signed by Governor Brown that required government employers to remove conviction inquiries from job applications and delay conviction background checks until after the agency determined 37 Ban-the-Box & Fair-Chance States California’s fair- chance hiring law remains the strongest such state law applicable to private-sector employment. 59 NELP | BAN THE BOX – FAIR CHANCE GUIDE 10 an applicant satisfied the “minimum employment qualifications” for the position. The law applied to state agencies, cities, counties, and special districts. AB 218 was initially introduced in 2012 as AB 1831. Sponsoring organizations included NELP, Legal Services for Prisoners with Children, All of Us or None, and PICO California. More than 100 organizations—spanning labor, interfaith, reentry, civil rights, employment, criminal justice, and others groups—formed a coalition in support of the bill. AB 218 was also endorsed by several major newspapers, including The New York Times, Los Angeles Times, and Sacramento Bee. Introduced by Asm. Roger Dickinson (D), see bill information. The statute became operative on July 1, 2014. On the effective date of the legislation, NELP released a survey of the largest cities and counties in California, which revealed statewide implementation of the law. Before AB 218, the administration of Governor Arnold Schwarzenegger (R) adopted a policy in 2010 that removed any conviction question from state job applications. In addition to these ban-the-box policies, California Labor Code Section 432.7 prohibits public and private employers from inquiring into, or basing a hiring decision on, any arrest that did not result in conviction (with limited exceptions), diversion program participation, sealed or expunged (i.e., “judicially dismissed”) convictions, and juvenile court records. The Fair Employment and Housing Council (FEHC) of the California Department of Fair Employment and Housing (DFEH) issued regulations pertaining to the use of conviction or arrest history in employment decisions, effective July 1, 2017. The regulations, which apply to public and private employers, detail how consideration of criminal history may violate the California Fair Employment and Housing Act and other laws, explain what employers and employees need to demonstrate to show compliance or a violation, and require an individualized assessment—in line with the EEOC factors—when the applicant is a member of a protected class that is adversely impacted by consideration of criminal history. Following the enactment of the California Fair Chance Act in 2017, the FEHC issued updated regulations, which are effective October 1, 2020. 3. COLORADO HOUSE BILL 1025 (2019) (APPLIES TO PRIVATE EMPLOYMENT); HOUSE BILL 1263 (2012) (APPLIES TO STATE EMPLOYMENT) On May 28, 2019, Governor Jared Polis (D) signed HB 19-1025, supplementing the state’s public-sector law (Colo. Rev. Stat. § 24-5-101, summarized below) and making Colorado the thirteenth state to ban the box for private-sector employment. The Colorado Chance to Compete Act (Colo. Rev. Stat. § 8-2-130) applies to most jobs with private employers, except for positions for which the employer is prohibited by law from hiring someone with a specific conviction history or required by law to conduct a background check as well as positions designated by the employer as participating in a government program to encourage employment of people with records. The law bars employers from stating in a job advertisement or on an application form that a person with a record may not apply as well as from inquiring into or requiring disclosure of an 60 NELP | BAN THE BOX – FAIR CHANCE GUIDE 11 applicant’s record on an initial application. An employer may, however, obtain a “publicly available criminal background report” at any time. Enforcement of the law is delegated to the Colorado Department of Labor and Employment, which may investigate complaints received within one year after the alleged violation and impose civil penalties, which increase for subsequent violations. In August 2019, the department issued rules to implement the law (7 CCR 1103-9). The law takes full effect on a staggered schedule, requiring employers with eleven or more employees to ban the box beginning September 1, 2019 and all other employers to do so starting September 1, 2021. Signed into law on May 29, 2012 by Governor John Hickenlooper (D), HB 12-1263 (Colo. Rev. Stat. § 24-5-101) prohibits state agencies from performing a background check until the agency determines that the applicant is a finalist for the position or the applicant receives a conditional offer. In determining whether a conviction disqualifies an applicant from employment, the agency must consider (1) the nature of the conviction; (2) the direct relationship of the conviction to the job; (3) rehabilitation and good conduct; and (4) the time elapsed since the conviction. The law further prevents agencies from using arrests not leading to conviction in deciding whether to deny or withdraw an offer. An agency may not disqualify an applicant based on an expunged, sealed, or pardoned conviction or charges dismissed pursuant to a deferred judgment, unless the agency first considers the four factors listed above. This law does not apply to certain public safety or correction-related jobs. With some exceptions, the law prohibits agencies from issuing job advertisements that include blanket bans stating that a person with a criminal record may not apply. The Colorado Criminal Justice Reform Coalition supported the legislation. Introduced by Rep. Claire Levy (D), see bill information. The public-sector law took effect on August 8, 2012. Commentary: Prior to the 2012 bill, Colorado state employment applications omitted any inquiries about applicants’ convictions or arrests. Thus, unlike the typical fair hiring legislation, Colo. Rev. Stat. § 24-5-101 does not include language that requires public employers to remove conviction inquiries from their applications. 4. CONNECTICUT HOUSE BILL 5237 (2016) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Signed on June 1, 2016 by Governor Dannel P. Malloy (D), HB 5237 prohibits any employer—public or private—from inquiring about arrest and conviction history information on an initial employment application. Employers may not inquire about any erased records at any time. Prior convictions for which the prospective employee received a provisional pardon or certificate of rehabilitation cannot be the sole basis for discharge. The law also established a fair chance employment task force. The law took effect on January 1, 2017. 61 NELP | BAN THE BOX – FAIR CHANCE GUIDE 12 Commentary: Prior legislation, HB 5207, took effect in 2010 and required state employers to wait until an applicant had been deemed otherwise qualified for the position before obtaining a criminal background report. 5. DELAWARE HOUSE BILL 167 (2014) (APPLIES TO PUBLIC EMPLOYMENT) Signed on May 8, 2014 by Governor Jack A. Markell (D), HB 167, applies to the state, its agencies, and political subdivisions, such as cities and counties. This bill prohibits public employers from inquiring into or considering criminal or credit histories of an applicant until after the completion of the first interview. When reviewing a criminal history, the public employer must consider: (1) nature of the offense; (2) time passed; and (3) nature of the job. Police forces and other positions with a statutory mandate for background checks are exempted. Governor Markell endorsed the bill in his 2014 State of the State address. The bill was introduced by Rep. James (“J.J.”) Johnson (D), see bill information. See NELP’s press release. The law took effect on November 4, 2014 (180 days after enactment). Commentary: In the initial bill version, the public employer was directed to consider a criminal record using a combination of factors in the EEOC Guidance and the 1979 Uniform Law Commissioners’ Model Sentencing and Corrections Act. These factors clarified the job-relatedness analysis. However, the bill was amended and the EEOC factors above replaced the language. In addition, the provision encouraging state vendors to adopt similar policies was removed. 6. GEORGIA EXECUTIVE ORDER (2015) (APPLIES TO STATE EMPLOYMENT) Governor Nathan Deal (R) signed an executive order on February 23, 2015 which removed questions regarding criminal history from all applications for state employment. Under the executive order, inquiries into an applicant’s criminal record are postponed until after “the initial stage of the state employment application process.” In addition, the order prohibits the use of an applicant’s criminal record as an automatic bar to employment, and provides applicants an opportunity to dispute the accuracy and relevance of any disqualifying conviction relied upon for rejection. Certain “sensitive governmental positions” are exempt. See NELP’s press release. Commentary: Georgia is the first state in the Deep South to adopt a fair hiring policy. A broad coalition of advocacy groups, including Atlantans Building Leadership for Empowerment, the Georgia Justice Project, 9to5 Atlanta, and various faith-based organizations, supported the executive order. 7. HAWAI’I HOUSE BILL 3528 (1998) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) On July 15, 1998, Hawai’i became the first state to adopt a fair-chance law applicable to both public and private employment. The statute, Haw. Rev. Stat. § 378-2.5, prohibits employers from inquiring into an applicant’s conviction history until after a conditional offer of employment has been made. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the Georgia was the first state in the Deep South to ban the box for public-sector hiring. In 1998, Hawai’i became the first state to delay conviction history inquiries; the law applies to private employers. 62 NELP | BAN THE BOX – FAIR CHANCE GUIDE 13 position sought. Under the law, employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. Prior to the passage of HB 3528, the definition of unlawful discriminatory practices (§ 378-2) included “arrest and court record” as an impermissible reason for an employer to “refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual.” Commentary: Not only was Hawai’i the first state to adopt a law delaying conviction history inquiries, but the state’s law remains one of the strongest in the United States. NELP recommends Hawai’i’s approach of prohibiting employers from inquiring into a conviction until after a conditional offer as one of the strongest means to change employer behavior of categorically rejecting the job applications of people with records. 8. ILLINOIS HOUSE BILL 5701 (2014) (APPLIES TO PRIVATE EMPLOYERS); EXECUTIVE ORDER (2013) (APPLIES TO STATE EMPLOYMENT) Introduced on February 14, 2014, HB 5701 (the “Job Opportunities for Qualified Applicants Act”) applies to employers with 15 or more employees and employment agencies. Employers may not inquire into an applicant’s criminal record until the applicant has been selected for an interview by the employer or until after a conditional offer of employment is made to the applicant. Positions that have state or federal law exclusions based on certain convictions are exempted. The bill authorizes the imposition of warnings and civil penalties against violators. The bill was signed by Governor Pat Quinn (D) on July 19, 2014. Introduced by Rep. Rita Mayfield (D), see bill information. See NELP’s press release. The law took effect on January 1, 2015. Commentary: The 2014 law applies to only private employers because Governor Quinn issued an executive order in 2013, Order 1, which required the Illinois Bureau of Personnel in the Department of Central Management Services (CMS) to modify the Application for State Employment (the “CMS100”) for all state employing agencies, boards, and commissions. In 2021, the legislature amended the Illinois Human Rights Act to make it a “civil rights violation” for any employer to take any adverse employment action based on conviction history unless either “there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held” or the employment “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Pursuant to SB 1480 (2021), employers must consider factors including whether the job creates an opportunity for a similar offense to recur, the nature of the offense, how long ago it occurred, the individual’s age at that time, and any evidence of rehabilitation. Employers must provide written notice to the applicant and an opportunity for the applicant to respond before denying a job or taking other adverse employment action. The amendment, championed by the Illinois Legislative Black Caucus, largely mirrors Article 23-A of New York Correction Law (described In 2021, Illinois became just the second state (after New York) to extend antidiscrimination rights to workers with conviction records. 63 NELP | BAN THE BOX – FAIR CHANCE GUIDE 14 below). Governor JB Pritzker (D) signed the bill on March 23, 2021, and the law took effect immediately. 9. INDIANA EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN THE EXECUTIVE BRANCH) On June 29, 2017, Governor Eric J. Holcomb (R) issued Executive Order 17-15, requiring the removal of “questions regarding convictions and criminal history” on job applications for positions within the state’s executive branch. As the executive order states, background checks, “including information pertaining to a person’s criminal history, typically will be conducted at a later point in the application and hiring process.” The executive order became effective on July 1, 2017. Commentary: Governor Holcomb also signed Senate Bill 312 into law in April 2017. This restrictive law prohibits local governments from adopting legislation preventing employers from “obtaining or using criminal history information during the hiring process to the extent allowed by federal or state law, rules, or regulations.” 10. KANSAS EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH) On May 2, 2018, Governor Jeff Colyer (R) issued an executive order to ban the box from all executive branch hiring. Executive Order 18-12 instructs all departments, agencies, boards, and commissions under the governor’s jurisdiction to ensure that job applicants are not asked about their conviction or arrest records “during the initial stage of a state employment application.” The governor further ordered that a conviction record shall not automatically disqualify an applicant from being interviewed. The order includes an exception for positions for which an applicant would be ineligible because of a certain conviction record; such positions are excluded from the prohibitions against conviction record inquiries on the initial application and automatic disqualifications. Commentary: In a press release, Governor Colyer explained his rationale for the policy change: “Studies have shown that gainful employment is a major factor in reducing recidivism rate[s] . . . . This is simply about treating people as individuals and allowing them to explain their circumstances at a later point in the process.” 11. KENTUCKY EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH) On February 1, 2017, Governor Matt Bevin (R) signed an executive order removing “questions regarding convictions and criminal history” from applications for jobs within the state executive branch. Instead, such inquiries must be delayed until the state agency contacts the applicant to offer an interview for the position. The executive order took effect immediately upon signing. See Governor Bevin’s press release. Commentary: Governor Bevin cited the need for “leadership by example” upon signing the order and challenged private businesses to remove conviction inquiries from their job applications. “It’s fair, it’s appropriate, it’s even-handed, and it’s what we’re going to 64 NELP | BAN THE BOX – FAIR CHANCE GUIDE 15 do here in Kentucky. And it is my hope, my sincere hope, that many of our employers in this state will consider doing the same thing.” 12. LOUISIANA HOUSE BILL 266 (2016) (APPLIES TO SOME STATE EMPLOYMENT) Signed on June 8, 2016 by Governor John Bel Edwards (D), HB 266, now Act 398, prohibits many state government employers from inquiring into an applicant’s criminal history until after the applicant has been given an opportunity to interview. If no interview is to take place, employers may not ask about an applicant’s record until after a conditional offer of employment is extended to that applicant. The law applies to only “unclassified” state positions and further exempts law enforcement, corrections, and other positions for which the law requires a background check. The bill was introduced by Reps. C. Denise Marcelle (D) and Patricia Haynes Smith (D). The law took effect on August 1, 2016. See bill information. On May 3, 2017, following a public hearing, the State Civil Service Commission adopted Civil Service Rule 22.4.1 prohibiting state employers from inquiring about job applicants’ felony history on application forms for positions in the classified service. Instead, state employers may inquire about an applicant’s record during an interview or after a conditional offer of employment. The policy makes an exception for positions for which a legal restriction prohibits hiring an applicant with a particular conviction history. On June 16, 2021, Governor Edwards signed HB 707, now Act 406, (originally introduced as HB 480), which imposes certain restrictions on private employers in the state. While it does not “ban the box” (i.e., delay record-related inquiries), this “fair chance” law requires fairer consideration of job applicant records. First, the law prohibits employers from requesting or considering records of arrests or charges that did not result in conviction. With regard to other types of criminal history records, the law requires employers to conduct an “individual assessment” of whether a record has a “direct and adverse relationship with the specific duties of the job.” As part of this assessment, an employer must consider (i) the nature and gravity of the offense, (ii) the time elapsed, and (iii) the nature of the job. Finally, upon written request from the applicant, employers must provide any background check information used during the hiring process. The law took effect on August 1, 2021. Commentary: Louisiana was the first state in the Deep South to adopt a fair hiring policy via legislative action. The 2016 bill applied to only unclassified state employment, but a 2017 rule change extended the policy to classified state positions as well. The campaign for the 2021 fair chance law was led by grassroots organizing group Step Up Louisiana. 13. MAINE LEGISLATIVE DOCUMENT 1167 (2021) (APPLIES TO PRIVATE EMPLOYMENT); LEGISLATIVE DOCUMENT 170 (2019) (APPLIES TO STATE EMPLOYMENT) On April 5, 2019, Governor Janet Mills (D) signed L.D. 170, adding title 5, section 792 to the state code and prohibiting questions about criminal history on applications for state government jobs. The three-sentence law does not apply to employment with a political 65 NELP | BAN THE BOX – FAIR CHANCE GUIDE 16 subdivision of the state (such as municipalities or counties), to positions in school administration, or to state government positions for which an applicant may be ineligible because of his or her record and the nature of the position. The law took effect on September 17, 2019. On July 6, 2021, Governor Mills also signed L.D. 1167, which prohibits private-sector employers and municipalities or political subdivisions of the state from inquiring about criminal history on their initial job application forms. The law further prohibits those employers from stating on initial applications or job advertisements that candidates with records will not be considered. Instead, such employers must wait until an interview or the applicant is determined otherwise qualified before asking about criminal history. The employer must also afford the applicant an opportunity to explain “the information and the circumstances regarding any convictions, including post-conviction rehabilitation.” The law carves out exceptions where federal or state law or regulation create prohibit an employer from hiring a person because of their conviction record (or create a presumptive disqualification), in which case the employer may ask on initial applications about the types of offenses creating the disqualification. Employers can face penalties of $100 to $500 for each violation of the law. Commentary: Rep. Rachel Talbot Ross (D) (the first Black woman elected to the Maine legislature) first introduced private-sector ban-the-box legislation in 2019. In 2018, a bill almost identical to L.D. 179 (L.D. 1566 (2018)) cleared the Maine legislature with strong bipartisan support but was later vetoed by then-Governor Paul LePage (R). 14. MARYLAND SENATE BILL 839/HOUSE BILL 994 (2020) (APPLIES TO PRIVATE EMPLOYMENT); SENATE BILL 4 (2013) (APPLIES TO STATE EMPLOYMENT) Effective January 2020, Maryland became the fourteenth state to ban the box for private employment. SB 839/HB 994 amend Maryland law to prohibit employers with at least 15 full-time employees from requiring any job applicant to disclose a criminal record before an in-person interview. The law applies to temporary and contractual workers and expressly allows local jurisdictions to enact stronger ban-the-box laws and policies. The law makes exceptions for employers providing services to minors or vulnerable adults and does not prohibit employers from making record-related inquiries as required or expressly authorized by federal or state law. After investigating a complaint from an applicant or employee, the Maryland Commissioner of Labor and Industry may compel employer compliance and, for subsequent violations of the ban-the-box law, impose civil penalties of up to $300 per employee/applicant. Signed on May 2, 2013 by Governor Martin O’Malley (D), SB 4 added Article 2-203, Chapter 160 to the state code and prohibits state government employers from inquiring into the criminal history of an applicant for employment until the applicant has been provided an opportunity for an interview. Exceptions to the law include positions within the Department of Corrections, the Office of the Sheriff for any county, or where a In 2021, Maine became the 15th state to ban the box for private-sector employment. 66 NELP | BAN THE BOX – FAIR CHANCE GUIDE 17 background check is required by law. Introduced by Sen. Catherine Pugh (D), see bill information. The statute took effect on October 1, 2013. Commentary: The Maryland legislature passed the private-sector ban-the-box bills (SB 839/HB 994) in the spring of 2019. However, on May 24, 2019, Governor Larry Hogan (R) vetoed those bills, asserting that ban the box would inconvenience employers and incorrectly claiming that it would reduce public safety. On January 30, 2020, both chambers of the legislature voted to override the veto. Originally set to take effect January 1, 2020, the law took effect immediately. Job Opportunities Task Force helped lead a statewide coalition that advocated for ban the box in Maryland for several years. The public-sector law also required state employers to collect hiring data and report to the state legislature, but that section sunset on June 30, 2018. 15. MASSACHUSETTS SENATE BILL 2583 (2010) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Governor Deval Patrick (D) signed Chapter 256 of the Acts of 2010 on August 6, 2010. Under Senate Bill 2583, employers are prohibited from using an initial written employment application to ask whether an applicant has been previously convicted unless there is a legal restriction that applies to the specific job or occupation. The law requires that applicants receive a copy of their criminal history report (i) prior to being questioned about their history; and (ii) if an adverse decision is made based on the report. As a self-auditing mechanism, individuals are able to determine if the report was run through the state system. With certain exceptions, criminal records provided by the state may contain only (1) felony convictions for 10 years following disposition; (2) misdemeanor convictions for 5 years following disposition; and (3) pending criminal charges. The legislation was supported by a broad coalition (including Massachusetts Law Reform Institute and Boston Workers Alliance (BWA)). See bill information, MCAD factsheet, and BWA factsheet. The law took effect on November 4, 2010. On April 13, 2018, Governor Charlie Baker (R) approved an amendment strengthening the state’s ban the box law. Specifically, S.2371 (2018) or Chapter 69 of the Acts of 2018 (i) decreases the misdemeanor lookback period to 3 years; (ii) prohibits employers from asking about sealed or expunged records; and (iii) requires employers to include on any application seeking criminal history information a statement making clear that individuals with sealed or expunged convictions can indicate that they do not have a record. The new law took effect on October 13, 2018. Commentary: The bill uniquely tackles the issue of inaccurate commercial background checks by creating an incentive for employers to use the state’s database, which then limits the length of time that criminal history information is available. It also ensures that a denied applicant receives a copy of his or her record, paralleling one component of the federal consumer protection law, the Fair Credit Reporting Act, which applies to commercially-prepared background checks. 67 NELP | BAN THE BOX – FAIR CHANCE GUIDE 18 16. MICHIGAN EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT) On September 7, 2018, Governor Rick Snyder issued Executive Directive 2018-4, regarding the “Use of Criminal History in State Employment Screening.” In short, it prohibits state departments and agencies from including questions about conviction or arrest history on job applications or job postings. The directive explains that, while an applicant’s record may be considered during the “interview stage” of the hiring process, “it should not be used as a reason to automatically exclude an applicant for consideration at the outset of the process.” The directive includes an exception for applications and postings for specific positions into which the department or agency is prohibited by federal or state law from hiring a candidate with a criminal history. Although not binding on the Michigan Department of State and the Michigan Department of the Attorney General, the directive encourages those departments to voluntarily comply with its terms. The directive takes effect October 1, 2018. Commentary: Upon issuing the executive directive, Governor Snyder also announced that the Michigan Department of Licensing and Regulatory Affairs (LARA) had recently removed the question about past felony convictions from its applications for certain occupational and construction licenses. (According to its website, the Licensing Division of LARA “regulates 15 occupational professions in Michigan under the Michigan Occupational Code.”) In 2015, Governor Snyder approved a new state law that prohibits cities and counties from adopting ban-the-box ordinances that govern private employers. 17. MINNESOTA SENATE BILL 523 (2009, 2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Signed on May 13, 2013 by Governor Mark Dayton (D), SF 523 amends Minn. Stat. § 364 et seq. This amendment expands the law from 2009 to cover not only public-sector hiring, but also adds that private employers may not inquire into an applicant’s criminal history until after the applicant has been selected for an interview or before a conditional offer of employment. It also establishes penalties for private employers including fines for failure to comply. Behind the legislative win, the Minnesota Second Chance Coalition built on the 2009 success of HF 1301, which added section 364.021 to Minn. Stat. § 364 et seq. applying ban-the-box to public employment. Longstanding statutory protections preceding that bill, dating back to 1974, include a prohibition against disqualifying applicants from public employment or licensure unless the conviction is “directly related” to the position of employment or occupational license sought, a requirement that job-related factors be considered, and a ban on using records of arrest not followed by valid conviction, annulled or expunged convictions, and misdemeanor convictions for which no jail sentence can be imposed when evaluating applicants for public employment or licensure. Introduced by Sen. Bobby Joe Champion (DFL), see bill information. The law took effect on January 1, 2014. Michigan’s policy was the 8th fair-chance executive order signed by a Republican governor. 68 NELP | BAN THE BOX – FAIR CHANCE GUIDE 19 Commentary: HF 1301 was signed by then-Governor Tim Pawlenty (R). Like HF 1301, SF 523 was an example of bipartisanship. Spurred by the state legislation, the Minneapolis-based retailer Target announced it would ban the box nationally. To support implementation, the Minnesota Department of Human Rights has provided educational materials for employers. 18. MISSOURI EXECUTIVE ORDER 16-04 (2016) (APPLIES TO PUBLIC EMPLOYMENT) Missouri Governor Jay Nixon (D) signed Executive Order 16-04 on April 11, 2016, directing all departments, agencies and boards and commissions in the state’s executive branch to remove questions relating to an individual’s criminal history from initial employment applications. The order exempts applications for positions for which people with convictions would be automatically ineligible. Full implementation of the order was required within 90 days. See Governor Nixon’s press release. Commentary: When signing the order, Governor Nixon stated, “The action I’m taking today will ensure that state government continues to be a model for increasing economic opportunity, improving public safety, and strengthening communities. This is about fairness. Giving folks a fair chance to redeem their lives, support their families and make a contribution to their communities is a value we share as Missourians and as Americans.” 19. NEBRASKA LEGISLATIVE BILL 907 (2014) (APPLIES TO PUBLIC EMPLOYMENT) Originally introduced in January 2014 as LB 932, the legislation applies to public employers—the state, counties, and cities. Public employers are prohibited from inquiring into a job applicant’s criminal history until after the employer has determined the applicant meets the minimum job requirements. Law enforcement positions and other positions with mandated background check requirements are exempted, as well as school districts regarding specific information. The language of LB 932 was added as Sec. 12 to the more comprehensive prison reform legislation intended to reduce the inmate population, LB 907. Governor Dave Heineman (R) signed LB 907 on April 16, 2014. Sec. 12 became operative on July 18, 2014 (three months after the 2014 legislative session adjourned on April 17, 2014). LB 932 was introduced by Sen. Bill Avery (D), and LB 907 was introduced by Sen. Brad Ashford (D), see bill information. See NELP’s press release. Commentary: Although exemptions are generally unnecessary with fair-chance legislation because a background check is delayed, not prevented, exemptions can serve to assuage fears. Supporters include the City of Omaha; in fact, Mayor Jean Stothert (R) cited her support for the legislation in her 2014 state of the city address. 20. NEVADA ASSEMBLY BILL 384 (2017) (APPLIES TO PUBLIC EMPLOYMENT) After initially introducing a similar bill in 2015, Assemblyman Tyrone Thompson (D) reintroduced ban-the-box legislation in 2017 as Assembly Bill 384. Governor Brian Sandoval (R) signed the bill into law on June 3, 2017. In the context of public employment, the law provides—with certain excepetions—that an employer may not 69 NELP | BAN THE BOX – FAIR CHANCE GUIDE 20 consider the particular criminal history of an applicant until after (1) the final in-person interview or (2) a conditional offer of employment has been extended, whichever comes first. The law generally requires employers, when assessing applicants with criminal records, to consider EEOC-type factors, including evidence of the applicant’s rehabilitation. The law takes effect January 1, 2018. The law grants enforcement authority to the Nevada Equal Rights Commission (NERC), clarifying that failing to follow the procedural requirements of the act constitutes an unlawful employment practice about which any injured person may complain to NERC. Commentary: This law—which will benefit the nearly 600,000 Nevadans with an arrest or conviction record—builds on the ban-the-box administrative policy approved by the City of North Las Vegas in 2016. Committee testimony and other input from a city representative helped to garner support for AB 384. Consulting with NERC while designing the enforcement provisions of the bill and obtaining committee testimony from a NERC representative also helped to reduce opposition to AB 384. 21. NEW HAMPSHIRE HOUSE BILL 253 (2020) (APPLIES TO STATE EMPLOYMENT) On July 28, 2020, House Bill 253 was signed into law, making New Hampshire the thirty- sixth state to ban the box. The law prohibits state government employers from asking about arrest or conviction history on job applications, instead requiring them to wait until an interview to make such inquiries. The reach of HB 253 is limited because it does not apply to jobs with political subdivisions of New Hampshire and includes several exceptions for employment with the state, including for positions with law enforcement, positions requiring a fidelity bond, and positions for which state or federal law or a contract prohibits hiring someone with a criminal history. The law is enforceable via civil penalties of up to $2,500 imposed by the Commissioner of the New Hampshire Department of Labor. The law is effective as of September 22, 2020. Commentary: In 2019, the New Hampshire legislature passed SB 100, a ban-the-box bill that covered both private- and public-sector employment. However, Governor Chris Sununu (R) vetoed a record number of bills that year, including SB 100. While the Senate voted to override the veto, the House fell short of the necessary votes. Advocates tried again in 2020 with a bill limited to the public sector. 22. NEW JERSEY ASSEMBLY HOUSE BILL 1999 AND SENATE BILL 1484 (2014) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Initial versions were introduced in 2013, but were reintroduced in 2014 as A1999 and S1484, known as “The Opportunity to Compete Act” (OTCA). A heavily amended A1999 was signed by Governor Chris Christie (R) on August 11, 2014. The final language is available here. The bill mandates that public and private employers cannot inquire into a candidate’s criminal history until the employer has conducted the first interview with the candidate. Employers may not consider expunged or pardoned convictions when making an employment decision. Introduced in the Senate by Sens. Sandra B. Cunningham (D), M. Teresa Ruiz (D), and Raymond J. Lesniak (D) and introduced to Republican Governor Christie signed New Jersey’s private-sector law in 2014. 70 NELP | BAN THE BOX – FAIR CHANCE GUIDE 21 Assembly by Asms. Bonnie Watson Coleman (D), Jerry Green (D), and L. Grace Spencer (D), see bill information. See NELP’s press release. The law took effect on March 1, 2015. On December 7, 2015, the New Jersey Department of Labor and Workforce Development adopted implementing regulations (N.J.A.C. 12:68). On December 20, 2017, Governor Christie signed S3306, amending the state’s ban-the- box law to expressly prohibit both employer inquiries into expunged offenses and online record searches during the initial employment application process. Commentary: Leading up to the introduction of the legislation, the New Jersey Institute for Social Justice engaged the private employer community through business roundtables as discussed in NELP’s webinar. The original version of the bill, available here, included numerous strong provisions, such as delaying inquiry until a conditional offer. 23. NEW MEXICO SENATE BILL 96 (2019) (APPLIES TO PRIVATE EMPLOYMENT); SENATE BILL 254 (2010) (APPLIES TO PUBLIC EMPLOYMENT) On March 8, 2010, Governor Bill Richardson (D) signed S.B. 254 into law, adding N. M. Stat. § 28-2-3 to the existing “Criminal Offender Employment Act” (1974). The bipartisan effort resulted in public employers, including cities and counties, being prohibited from inquiring into an applicant’s conviction history on an initial employment application until an applicant has been “selected as a finalist.” The law permits convictions to be considered when determining eligibility for public employment or licensure, but convictions “may not operate as an automatic bar.” The law further prohibits, for employment and licensing, the use of records of arrest not leading to conviction and misdemeanor convictions not involving moral turpitude. Drug Policy Alliance New Mexico led the efforts on the bill, which was introduced by Sen. Clinton D. Harden (R). See bill information. The statute took effect on May 19, 2010. On April 3, 2019, Governor Michelle Lujan Grisham (D) signed S.B. 96 into law, adding requirements for private employers to existing law. The law prohibits a private employer from inquiring into an applicant’s history of arrest or conviction on any written or electronic employment application. An employer may consider an applicant’s conviction history “after review of the applicant’s application and upon discussion of employment with the applicant.” The law allows applicants to seek relief for violations by filing a complaint pursuant to the Human Rights Act, N.M. Stat. §§ 28-1-10 through 28-1-13. Because the Human Rights Act (§ 28-1-2(B)) defines “employer” as persons employing four or more persons, the private-sector fair chance law is apparently limited to employers of at least that size. The statute took effect June 14, 2019. Commentary: The 2010 public-sector ban-the-box bill amended existing law, which permits a “moral turpitude” conviction that “directly relates” to employment to be the basis for denial. New Mexico law (§ 28-2-4) already required public boards or agencies 71 NELP | BAN THE BOX – FAIR CHANCE GUIDE 22 to state in writing the reasons for the applicant’s denial and adhere to stated parameters for a presumption of rehabilitation. S.B. 96 (2019) was not the New Mexico legislature’s first attempt to adopt a fair chance hiring law applicable to the private sector. In 2017, the legislature passed a similar bill, S.B. 78, which Governor Susana Martinez (R) vetoed. 24. NEW YORK (2015) (APPLIES TO STATE EMPLOYMENT) On September 21, 2015, Governor Andrew Cuomo (D) announced that the state would “adopt ‘fair chance hiring’ for New York State agencies.” As explained in a press release about the policy change: “applicants for competitive positions with New York State agencies will not be required to discuss or disclose information about prior convictions until and unless the agency has interviewed the candidate and is interested in hiring him or her.” Commentary: The fair-chance hiring policy was part of a package of recommendations made by the state’s Council on Community Re-Entry and Reintegration, created in July 2014 by the governor. New York law prohibits employers from asking about, or acting adversely in response to, arrests or charges that did not result in conviction and are not currently pending. See N.Y. Exec. Law § 296, ¶ 16. Article 23-A of New York Correction Law also makes it an “unlawful discriminatory practice” for any employer or licensing authority to deny employment or licensure, or take other adverse action, based on conviction history unless either “there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual” or the employment or licensure “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Correct. Law § 752; N.Y. Exec. Law § 296, ¶ 15. When considering an applicant with a record, the public agency or private employer must consider several factors, including the job- or occupation-relatedness of the offense, how long ago the offense occurred and the individual’s age at that time, as well as any information produced by the individual related to rehabilitation and good conduct. N.Y. Correct. Law § 753. 25. NORTH CAROLINA EXECUTIVE ORDER 158 (2020) (APPLIES TO STATE EMPLOYMENT) Governor Roy Cooper (D) signed Executive Order No. 158 on August 18, 2020, prohibiting state agencies from inquiring about criminal history on employment applications. Such inquiries and background checks cannot occur until after the candidate’s initial job interview. The order also prohibits state agencies from considering certain types of records: expunged or pardoned convictions; convictions unrelated to the job; arrests not resulting in conviction; and dismissed charges or those for which an individual was found not guilty. The order prohibits agencies from basing In 2020, North Carolina Governor Cooper became the 15th governor to ban the box via executive action. 72 NELP | BAN THE BOX – FAIR CHANCE GUIDE 23 employment decisions on criminal history unless it is “demonstrably job-related and consistent with business necessity associated with the position.” Agencies must establish criteria for reviewing an applicant’s record that are informed by the 2012 EEOC Guidance. Agencies must also provide applicants with a copy of their record and a reasonable opportunity to respond with additional explanation or proof of rehabilitation. The executive order does not apply to positions for which a criminal conviction would legally preclude employment in that position. The Office of State Human Resources was ordered to collect data related to the order from agencies and report to the Governor’s Office and State Reentry Council Collaborative annually. The N.C. Department of Administration was ordered to study the feasibility of extending a fair chance hiring policy to state contractors and submit a report to the governor by January 31, 2021. The order took effect immediately and was required to be implemented by November 1, 2020. Commentary: The governor’s order came on the heels of two related legislative victories—a fair chance licensing law in July 2019 and a record-clearing law in June 2020—both of which passed the legislature unanimously following campaigns led by the North Carolina Second Chance Alliance. 26. NORTH DAKOTA HOUSE BILL 1282 (2019) (APPLIES TO PUBLIC EMPLOYMENT) On March 13, 2019, Governor Doug Burgum (R) signed into law HB 1282, which prohibits public employers—including cities, counties, and agencies—from inquiring about or considering a job applicant’s criminal history until that applicant has been “selected for an interview.” Covered employers may continue to notify potential applicants up front that particular criminal histories may disqualify applicants from particular positions, pursuant to a law or policy of the employer. The statute includes a broad exemption for any public employer required by law to check or consider the criminal history of job applicants. The statute also exempts the Department of Corrections and Rehabilitation. The law takes effect August 1, 2019, as provided in the state constitution. Commentary: The bill as originally introduced made clear that the state labor commissioner had the power to investigate alleged violations of the statute. That provision, however, was amended out early in the legislative session, leaving enforcement authority uncertain. Introduced with bipartisan support in each chamber, this relatively modest bill easily cleared the House 81-11 and then the Senate 43-2. 27. OHIO ADMINISTRATIVE POLICY HR-29 AND HOUSE BILL 56 (2015) (APPLIES TO PUBLIC EMPLOYMENT) As of June 1, 2015, the Ohio Department of Administrative Services removed questions about conviction and arrest history from the initial application for state employment per HR-29. The Department also required that every hiring decision-maker weigh factors similar to those found in the EEOC guidance. On December 22, 2015, Governor John 73 NELP | BAN THE BOX – FAIR CHANCE GUIDE 24 Kasich (R) signed into law HB 56, which prohibits all public employers, including cities and counties, from including any questions about criminal records on initial applications for employment. The Ohio Fair Hiring Act also prohibits a felony conviction from being used against certain classes of public employees unless the conviction occurs while that person is employed in the civil service. The law took effect on March 23, 2016. Commentary: The Ohio Fair Hiring Act arose from the recommendations and advocacy of a strong coalition led by the Ohio Justice & Policy Center and the Ohio Organizing Collaborative. 28. OKLAHOMA (2016) EXECUTIVE ORDER 2016-03 (APPLIES TO STATE EMPLOYMENT) On February 24, 2016 Governor Mary Fallin (R) signed an executive order directing all state agencies to remove questions regarding convictions and criminal history from job applications. The executive order does not apply to “sensitive government positions” and positions where a felony conviction would automatically disqualify an applicant. It is intended to allow for an opportunity for applicants to discuss their conviction records and provide rehabilitation information. Commentary: The Executive Order arose from recommendations by the Oklahoma Justice Reform Steering Committee, a broad-based advisory committee that Governor Fallin created by executive order in 2015. See Governor Fallin’s press release. 29. OREGON HOUSE BILL 3025 (2015) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Signed on June 25, 2015, HB 3025 prohibits an employer from inquiring about an applicant’s prior criminal convictions until the initial interview with the applicant. There are exceptions for positions where an applicant with a conviction history would be automatically disqualified by law, and for law enforcement, criminal justice positions, and volunteers. The law took effect on January 1, 2016. Commentary: A coalition of community groups and labor championed the fair hiring legislation in Oregon under the campaign Fair Shot for All, which also included minimum wage, wage theft, and racial profiling legislation as part of its agenda. 30. PENNSYLVANIA ADMINISTRATIVE POLICY HR-TM001 (2017) (APPLIES TO STATE EMPLOYMENT) On May 5, 2017, Governor Tom Wolf (D) announced that state agencies would adopt a fair-chance hiring human resources policy for non-civil service positions that fall under the governor’s jurisdiction. In addition to removing questions about conviction history from job applications, the policy prohibits consideration of certain record information, including arrests, expunged convictions, and convictions not related to an applicant’s job suitability. Hiring entities are also required to consider the public’s interest in employing individuals with records when making hiring decisions. The policy includes exceptions for security personnel, law enforcement, and those working with vulnerable 74 NELP | BAN THE BOX – FAIR CHANCE GUIDE 25 populations. The HR policy took effect on July 1, 2017. The Pennsylvania Civil Service Commission has announced that it will also implement the same policy for civil service jobs in the Commonwealth. Commentary: Governor Wolf explained his rationale in a statement: “Banning the box will allow prospective applicants with criminal records to be judged on their skills and qualifications and not solely on their criminal history, while preserving a hiring agency’s ability to appropriately screen applicants as part of the hiring process.” Pennsylvania law (18 Pa. Cons. Stat. § 9125) also prohibits public and private employers from considering felony and misdemeanor convictions beyond the “extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” That statute also requires employers to notify an applicant in writing if he or she is not hired wholly or partly because of his or her criminal history. 31. RHODE ISLAND HOUSE BILL 5507 (2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT) Signed into law on July 15, 2013 by Governor Lincoln Chafee (D), HB 5507 prohibits an employer from inquiring about an applicant's prior criminal convictions until the first interview with the applicant. An employer may inquire about the applicant's criminal convictions during the first interview. The law includes exceptions for positions from which an applicant with a conviction history would be automatically disqualified by law. Introduced by Reps. Scott Slater (D), Michael W. Chippendale (R), Anastasia Williams (D), Joseph S. Almeida (D), and Grace Diaz (D), see bill information. The statute took effect on January 1, 2014. Commentary: Direct Action for Rights and Equality championed the efforts for years, producing the powerful video Beyond the Box. 32. TENNESSEE SENATE BILL 2440 (2016) (APPLIES TO STATE EMPLOYMENT) On April 14, 2016, Governor Bill Haslam (R) signed SB 2440, which prohibits state agencies from inquiring about criminal records on any initial application form. For an applicant with a conviction record, the employer must consider the specific job duties, relationship of the offense to the job duties, time elapsed since the offense, age of the applicant at the time of the offense, frequency and seriousness of each offense, any submitted evidence of rehabilitation, and any public policy consideration relating to the benefits for employment for applicants with past convictions. The act took effect upon its signing. Commentary: Senate Bill 2440 is the silver lining of a ban-the-box setback for localities in Tennessee. Despite emphasis on the importance of local government control, Governor Haslam signed SB 2103 in March 2016, which prevents cities and counties in the state from expanding fair-chance laws to local private employers. 75 NELP | BAN THE BOX – FAIR CHANCE GUIDE 26 33. UTAH HOUSE BILL 156 (2017) (APPLIES TO PUBLIC EMPLOYMENT) On March 22, 2017, Governor Gary Herbert (R) signed HB 156, which prohibits public employers from requiring an applicant to disclose conviction history before an initial interview or, if no interview is conducted, before a conditional job offer. The law provides for exceptions for situations where a law requires consideration of the applicant’s conviction history as well as for law enforcement, criminal justice, tax commission, or alcoholic beverage control employers, as well as for applicants that will work with children or vulnerable adults and nonemployee volunteers. The law took effect on May 8, 2017 (60 days after adjournment of the legislature). Commentary: Sponsor Rep. Sandra Hollins (D), a social worker by training, has sponsored an almost identical bill in at least one prior year. Whereas the bill failed in the House in 2016, it garnered 16 co-sponsors in the 2017 session. 34. VERMONT HOUSE BILL 261 (2016) (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT) House Bill 261 was signed by Governor Peter Shumlin (D) on May 3, 2016 making Vermont the eighth state to apply “ban the box” to the private sector. Under the law, an employer may not request criminal record information on its initial employment application form, and the prospective employee must be permitted the opportunity to explain the information, including rehabilitation. The law took effect on July 1, 2017. See the Governor’s press release. Commentary: On April 21, 2015, Governor Peter Shumlin (D) signed an executive order that eliminated all criminal records inquiries from applications for state employment. 35. VIRGINIA HOUSE BILL 757 (2020) (APPLIES TO PUBLIC EMPLOYMENT); EXECUTIVE ORDER 41 (2015) (APPLIES TO EMPLOYMENT IN STATE EXECUTIVE BRANCH) On March 23, 2020, Governor Ralph Northam (D) signed House Bill 757 into law, which passed with bipartisan support. The law requires state agencies and localities to delay inquiries about arrests, charges, and convictions until an interview of the prospective employee. The law includes exceptions for certain positions, including those with law enforcement, local school boards, and those that are “sensitive” in nature. On April 3, 2015, Governor Terry McAuliffe (D) issued Executive Order 41, ordering the removal of questions relating to criminal history from initial applications for state employment in the executive branch. The executive order further prohibits executive- branch employers from basing hiring decisions on an applicant’s conviction history unless demonstrably job-related and consistent with business necessity. Compliance with the executive order was required within 90 days of its signing. See NELP’s press release. Commentary: Local advocates have been championing legislative action on “ban the box” for several years. After legislation continued to stall, advocates called for executive action by then-Governor McAuliffe in 2015. The 2020 passage of House Bill 757 makes 76 NELP | BAN THE BOX – FAIR CHANCE GUIDE 27 public-sector ban the box in Virginia more permanent by memorializing it in statute and extends the policy to hiring by all state agencies as well as local governments. In 2020, Governor Northam also signed House Bill 972 into law. In addition to decriminalizing marijuana possession, the law prohibits any employer from requiring an applicant to disclose any arrest, charge, or conviction of marijuana possession. The law establishes misdemeanor liability for an employer’s willful violation. The law further limits the availability of records related to any arrest, charge, or conviction of marijuana possession to certain circumstances, including eligibility for firearm purchase, pretrial investigation reports, and probation reports. 36. WASHINGTON (2018) HOUSE BILL 1298 (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT) On March 13, 2018, Governor Jay Inslee (D) signed HB 1298 (second substitute), banning the box for both public- and private-sector employment across Washington. The law requires employers to delay conviction record inquiries and background checks until after determining that an applicant satisfies the basic criteria for the position and is thus “otherwise qualified” for the job. The law also prohibits employers from implementing any policy that categorically excludes people with records before the determination as to whether the candidates are otherwise qualified. Moreover, employers may not advertise jobs in a way that excludes people with records from applying. The law provides for monetary penalties and grants the state attorney general’s office sole enforcement authority. The statute took effect June 7, 2018. Commentary: Just two days after signing HB 1298, Governor Inslee signed SB 6582 to also ban the box from student applications for public colleges. Washington became only the third state (after Louisiana and Maryland) to adopt a law to delay questions about conviction records on college applications, thus helping to ensure that people with records have a fair shot at college acceptance. Even before the state’s ban-the-box law was adopted, section 162-12-140 of the Washington Administrative Code limited the types of preemployment inquiries that employers could make without running afoul of state antidiscrimination law. Under those regulations, public employers cannot ask about arrests without also asking whether charges remain pending, were dismissed, or resulted in a conviction. Moreover, consideration is limited to convictions that occurred within the prior ten years and relate to the duties of the job sought. These limits do not apply to law enforcement and certain other categories of employment. 37. WISCONSIN (2016) ASSEMBLY BILL 373 (APPLIES TO STATE EMPLOYMENT) Governor Scott Walker (R) signed legislation on February 12, 2016, which dramatically overhauled the state’s civil service system. A provision of the bill precludes the state from inquiring about a person’s record on the job application and delays inquiries until the applicant is certified for the position. The statute took effect on July 1, 2016. 77 NELP | BAN THE BOX – FAIR CHANCE GUIDE 28 Commentary: Senator Lena C. Taylor (D) commented that the law represented “terrible changes in the state civil service system.” Nevertheless, “the new law includes a ray of hope to those with a prior record.” 78 * Some of these components existed prior to the ban-the-box legislation listed here. ** Component included in only the Administrative Policy/Executive Order, not the state law. *** Component applies to only public employers. † Component applies to private employers despite lack of statewide private-sector ban-the-box law. NELP | BAN THE BOX – FAIR CHANCE GUIDE 27 State (Year law was adopted or policy announced) Relevant Statutes and Policy Employers: Private and Public (State: S, Cities and Counties: C) Job-Related Screening* Limits information (Arrests not leading to convictions: “Arrests”; Expunged or similar: “Expunged”; Time limit on record: “Time limit”)* Notification of denial: N; Copy of record: C* Arizona (2017) Executive Order 2017-07 — Public (S) — — — California (2010, 2013, 2017) Cal. Gov. Code § 12952; Cal. Lab. Code § 432.9 (2013, repealed 2017); administrative action (2010) Private Public (S, C) Consider whether “direct and adverse relationship with the specific duties of the job” Arrests, Expunged N, C Colorado (2012, 2019) Colo. Rev. Stat. § 24-5-101 (2012); Colo. Rev. Stat. § 8-2- 130 (2019) Private Public (S) “Direct relationship” between conviction and job*** Arrests, Expunged*** ͞ Connecticut (2010, 2016) Conn. Gen. Stat. § 46a-80 (2010); Conn Gen. Stat. § 31- 51i (2016) Private Public (S, C) ̶– Arrests, Expunged ͞ Delaware (2014) Del. Code tit. 19, § 711(g); Del. Code tit. 29, § 6909B ͞ Public (S, C) Consider nature of offense and job ͞ ͞ Georgia (2015) Executive Order ͞ Public (S) ͞ ͞ ͞ Hawai’i (1998) Haw. Rev. Stat. §§ 378-2, 378- 2.5 Private Public (S, C) Conviction bears “rational relationship” to position Time limit ͞ Illinois (2013, 2014, 2021) Executive Order 1 (2013); 820 Ill. Comp. Stat.§ 75 (2014); SB 1480 (2021) Private Public (S) ͞”Substantial relationship” between offense and job ͞ ͞ Indiana (2017) Executive Order — Public (S) ͞ ͞ ͞ Kansas (2018) Executive Order — Public (S) — — — Kentucky (2017) Executive Order — Public (S) — — — Louisiana (2016, 2021) La. Rev. Stat. Ann. § 42:1701 (2016); La. Rev. Stat. Ann. § 23:291.2 (2021) — Public (S) Consider whether “direct and adverse relationship with the specific duties of the job”† Arrests† C† 79 NELP | BAN THE BOX – FAIR CHANCE GUIDE 28 State (Year law was adopted or policy announced) Relevant Statutes and Policies Employers: Private and Public (State: S, Cities and Counties: C) Job-Related Screening* Limits information (Arrests not leading to convictions: “Arrests”; Expunged or similar: “Expunged”; Time limit on record: “Time limit”)* Notification of denial: N; Copy of record: C* Maine (2019, 2021) Maine Rev. Stat. tit. 5, § 792; Maine L.D. 1167 (2021) Private Public (S, C) — — — Maryland (2013, 2020) Md. Code Ann., State Pers. & Pens. § 2-203 (2013); Md. Code Ann., Labor & Emp’t §§ 3-1401 to -1405 (2020) Private Public (S, C) ͞ ͞ ͞ Massachusetts (2010, 2018) Mass. Gen. Laws ch. 151B, § 4 (9 ½); ch. 6, §§ 171A, 172; Ch. 69 of the Acts of 2018 Private Public (S, C) ͞ Sealed or Expunged, Time limit N, C Michigan (2018) Executive Directive 2018-4 — Public (S) — — — Minnesota (2009, 2013) Minn. Stat. § 364 Private Public (S, C) Conviction “directly relates” to position Arrests, Expunged N Missouri (2016) Executive Order 16-04 ͞ Public (S) ͞ ͞ ͞ Nebraska (2014) Neb. Rev. Stat. § 48-202 ͞ Public (S, C) ͞ ͞ ͞ Nevada (2017) AB 384 — Public (S, C) Consider whether conviction “directly relates” to responsibilities of position Arrests, Expunged N New Hampshire (2020) HB 253 — Public (S) — — — New Jersey (2014) N.J. Stat. Ann. § 34:6B-11 to -19 Private Public (S, C) ͞ Expunged ͞ New Mexico (2010, 2019) N.M. Stat. §§ 28-2-1 to 28-2-6 Private Public (S, C) Conviction “directly relates” to employment*** Arrests*** N*** New York (2015) Executive action (2015); N.Y. Correct. Law § 752; N.Y. Exec. Law § 296, ¶ 15 ͞ Public (S) “Direct relationship” to employment or “unreasonable risk” to property, safety, or welfare† Arrests† ͞ North Carolina (2020) Executive Order No. 158 — Public (S) Conviction “demonstrably job-related” Arrests, Expunged N, C North Dakota (2019) H.B. 1282 Public (S, C) — — — Ohio (2015) HR-29 Administrative Policy; HB 56 — Public (S, C) Sufficient nexus between conviction and position** Sealed or Expunged** N** 80 NELP | BAN THE BOX – FAIR CHANCE GUIDE 29 State (Year law was adopted or policy announced) Relevant Statutes and Policies Employers: Private and Public (State: S, Cities and Counties: C) Job-Related Screening* Limits information (Arrests not leading to convictions: “Arrests”; Expunged or similar: “Expunged”; Time limit on record: “Time limit”)* Notification of denial: N; Copy of record: C* Oklahoma (2016) Executive Order 2016-03 ͞ Public (S) — ͞ — Oregon (2015) 2015 Or. Laws Ch. 559 Private Public (S, C) — ͞ — Pennsylvania (2017) HR-TM001 Administrative Policy (2017); 18 Pa. Cons. Stat. § 9125 — Public (S) Consideration of convictions limited to “extent to which they relate to the applicant’s suitability” for the position† Arrests, Expunged N† Rhode Island (2013) R.I. Gen. Laws §§ 28-5-6, 28-5-7 Private Public (S, C) ͞ Arrests ͞ Tennessee (2016) SB 2440 — Public (S) Consider specific duties and responsibilities of position — — Utah (2017) HB 156 — Public (S, C) — — — Vermont (2015, 2016) Executive Order 03-15 (2015); 21 V.S.A. § 495j (2016) Private Public (S, C) ͞ ͞ ͞ Virginia (2015, 2020) Executive Order 41 (2015); HB 757 (2020) ͞ Public (S, C) Conviction must be job- related** ͞ ͞ Washington (2018) HB 1298 (2018) Private Public (S, C) — — — Wisconsin (2016) AB 373 ͞ Public (S) ͞ ͞ ͞ 81 NELP | BAN THE BOX – FAIR CHANCE GUIDE 30 Private-Employment Laws Fair-chance laws and policies applicable to public employers are an important step toward ensuring that people with records have a fair chance to work. Achieving widespread opportunities for workers with records, however, necessitates changes in the hiring practices of private employers. As businesses recognize the many advantages of opening their workforces to talented applicants with records, many— like Starbucks and Google—adopt internal policies to ban the box and fairly consider an applicant’s record. Lawmakers can take an additional step toward ensuring sufficient opportunities for the approximately 70 million people with a record by supplementing employers’ internal policies with fair-chance laws applicable to the private sector. As summarized in the chart on the following page, 15 states and 22 localities (cities, counties, and the District of Columbia) have adopted laws requiring private employers to ban the box and fairly consider applicants with records. More than one-third of the current U.S. population lives in these jurisdictions—that’s over 122 million people. And that tally doesn’t include the many commuters living outside yet working within one of these jurisdictions, who also benefit from the laws. As noted in the chart, some states have required private employers to adopt certain fair chance hiring practices without banning the box. 15 states & 22 localities extend their fair-chance laws to private-sector employment. 82 NELP | BAN THE BOX – FAIR CHANCE GUIDE 31 Private-Employment Laws Location Ban the Box Background check for only some positions Background check only after conditional offer EEOC- type criteria Appeal or complaint (A); Copy of record (C); Look-back limit (L); Notice of denial (N) STATES 1. California X X X A, C, N 2. Colorado X A 3. Connecticut X A 4. Hawai’i X X X A, L 5. Illinois X A Louisiana X C 6. Maine X 7. Maryland X A 8. Massachusetts X A, C, L, N 9. Minnesota X X A 10. New Jersey X A 11. New Mexico X A New York X 12. Oregon X A Pennsylvania N 13. Rhode Island X A 14. Vermont X A 15. Washington X L, A LOCALITIES 1. Austin, TX X X X X A, N 2. Baltimore, MD X X X X A 3. Buffalo, NY X X A 4. Chicago, IL X X A 5. Columbia, MO X X X A 6. DeSoto, TX X A 7. District of Columbia X X X A 8. Kansas City, MO X X 9. Los Angeles, CA X X X A, C, N 10. Montgomery County, MD X A, C, N 11. New York, NY X X X A, C, N 12. Philadelphia, PA X X X A, C, N 13. Portland, OR X X X A, N 14. Prince George’s County, MD X X A, C, N 83 NELP | BAN THE BOX – FAIR CHANCE GUIDE 32 Private-Employment Laws 15. Rochester, NY X X A 16. San Francisco, CA X X X A, C, L, N 17. Seattle, WA X X A, C, N 18. Spokane, WA X 19. St. Louis, MO X A 20. Suffolk County, NY X X A 21. Waterloo, IA X X X A 22. Westchester County, NY X X A 84 NELP | BAN THE BOX – FAIR CHANCE GUIDE 33 Local Ban-the-Box & Fair-Chance Laws and Policies (Listed in chronological order by date a law or policy was first adopted.) BOSTON, MA (ORDINANCE APPLIES TO CITY AND VENDORS) • Background checks only required for some positions • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment In 2004, Boston implemented policies that limit discrimination against people with criminal records in city government positions. In July 2006, Boston expanded those policies by removing the questions about criminal history from the job application and by requiring an estimated 50,000 city vendors to follow the City’s hiring standards. The revised job application begins with an anti-discrimination statement listing “ex-offender status” as a protected classification. Background checks are not required for all positions. The ordinance includes an appeal and the right to present information. A broad community coalition, Massachusetts Alliance to Reform CORI (MARC), supported these developments. Boston Resources Boston City Council Ordinance (July 1, 2006), available here Boston Equal Opportunity Statement, available here Boston Contacts Bill Kessler, Assistant Director Chuck Wynder Jr., Executive Director Office of Human Resources Boston Workers Alliance bill.kessler@cityofboston.gov chuck@bostonworkersalliance.org SAN FRANCISCO, CA (FAIR-CHANCE ORDINANCE APPLIES TO PRIVATE EMPLOYERS AND AFFORDABLE HOUSING (2014, 2018); BOARD OF SUPERVISORS RESOLUTION APPLIES TO CITY AND COUNTY (2005)) • Policy applies to private employers and to affordable housing • Incorporates EEOC criteria in individualized assessment (jobs and housing) • Right to appeal denial of employment or housing • Provides copy of background check report • Background check only after conditional offer of employment The campaign to “ban the box” from San Francisco’s applications for public employment was led by All of Us or None, a national organizing initiative of formerly incarcerated people. In 2005, the San Francisco Board of Supervisors approved a resolution initiated by All of Us or None calling for San Francisco to eliminate hiring discrimination against people with criminal records by removing the request for 85 NELP | BAN THE BOX – FAIR CHANCE GUIDE 34 criminal history information from the initial job application for public employment. The resolution was implemented as a municipal hiring policy. An individual's past convictions can only be considered after an applicant has been identified as a finalist for a position. The exception is for those jobs where state or local laws expressly bar people with convictions from employment, in which case the City conducts its background review at an earlier stage of the hiring process. In 2011, the San Francisco Human Rights Commission and the San Francisco Reentry Council recommended expanding the City’s policy to all private employers, vendors, and affordable housing providers. After a three-year campaign led by NELP, All of Us or None, and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCR), the San Francisco Board of Supervisors unanimously passed the Fair Chance Ordinance (FCO) on February 4, 2014. Private employers may not inquire into an applicant’s conviction history until after a live interview or conditional offer. In 2018, the San Francisco Board of Supervisors amended to the Fair Chance Ordinance to strengthen it and bring it more line with California’s new statewide Fair Chance Act. Changes to the law include reducing the minimum size of employers governed from twenty to five employees; increasing monetary penalties; providing a private right of action; prohibiting employers from inquiring into conviction history until after a conditional offer; and prohibiting questions about, and decisions based on, decriminalized behavior. The amendments are effective October 1, 2018. San Francisco Resources San Francisco Board of Supervisors Resolution (Oct. 11, 2005), available here. San Francisco Fair Chance Ordinance (Feb. 4, 2014), available here. Fair-Chance Implementation Case Studies for Government Agencies, available here. San Francisco Fair Chance Ordinance (Apr. 3, 2018), available here. San Francisco Contacts Ted Yamasaki, Managing Deputy Dir. Ellen Love, Principal Admin. Analyst Human Resources Department Office of Labor Standards Enforcement ted.yamasaki@sfgov.org ellen.love@sfgov.org Note: San Francisco has a consolidated city-county government. CHICAGO, IL (MAYOR’S INITIATIVE; ORDINANCE APPLIES TO PRIVATE EMPLOYERS) • Policy applies to private employers • Incorporates EEOC criteria in individualized assessment 86 NELP | BAN THE BOX – FAIR CHANCE GUIDE 35 In May 2004, Chicago Mayor Richard Daley created the Mayoral Policy Caucus on Prisoner Reentry, bringing together government and community leaders. In January 2006, the Caucus issued a major report calling for broad reforms of City policy. Implementing the Mayor's hiring policy, the Chicago Department of Human Resources issued guidelines and removed the question about criminal history from the job application. In November 2014, the City Council passed an ordinance that extended the city policy to all private employers, including those that are exempted from the state law (which covers private employers with more than 15 employees). Conviction history inquiry is permitted after the candidate is selected for an interview or after conditional offer. The ordinance was referred to the Council by Mayor Rahm Emanuel. Chicago Resources Mayor Daley’s Press Release (Jan. 24, 2006), available here. Report of the Mayoral Policy Caucus on Prisoner Reentry (Jan. 2006), available here. Chicago Department of Human Resources Guidelines (June 5, 2007), available here. City Council Ordinance O2014-8347 (Nov. 5, 2014), available here. Chicago Contact Mona Noriega, Chairman and Commissioner Commission on Human Relations (312)744-4111 ALAMEDA COUNTY, CA (RESOLUTION APPLIES TO COUNTY) • Incorporates EEOC criteria in individualized assessment Beginning in March 2007, Alameda County removed the question on the job application that required all applicants to list their criminal convictions. Self- disclosure of criminal history information does not occur until the last step of the examination process and fingerprinting for background checks is performed after a conditional offer. In addition, to protect against potential discrimination, a special unit in the Human Resources Department performs an analysis to determine if the conviction is, in fact, related to the specific functions of the job. As reported by the Interim Director of Human Resources Services in March 2012, the County has not had any problems with the policy and “has benefited from hiring dedicated and hardworking County employees because of the policy change.” Alameda County Resources Alameda County Board of Supervisors Resolution (Oct. 3, 2006), available here. Alameda County Letter to Asm. Roger Dickinson (March 28, 2012), available here. Alameda County Contact Rodney Brooks, Chief of Staff Office of Supervisor Keith Carson 87 NELP | BAN THE BOX – FAIR CHANCE GUIDE 36 rodney.brooks@acgov.org ST. PAUL, MN (MAYOR’S DIRECTIVE AND CITY COUNCIL RESOLUTION APPLY TO CITY) • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment In December 2006, Mayor Christopher Coleman of St. Paul directed the City's Human Resources Department to reform its hiring process so that “all applicants have a full and fair opportunity for employment.” The City thus amended its employment application to remove questions regarding criminal history. That same month, the City Council approved a resolution calling on the City to “make a good faith determination as to which specific positions of employment are of such sensitivity and responsibility that a background check is warranted.” The resolution also mandated that background checks be performed only after an applicant is determined to be otherwise qualified for that position. St. Paul Resources Mayor Coleman’s Memo to the City Council (Dec. 5, 2006), available here. Report of the Council on Crime and Justice, available here. St. Paul City Council Resolution, available here. St. Paul Employment Application, available here. St. Paul Contacts Angie Nalezny, Director Human Resources Department angie.nalezny@ci.stpaul.mn.us MINNEAPOLIS, MN (RESOLUTION APPLIES TO CITY) • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment Like St. Paul, Minneapolis passed a resolution banning the box in December 2006. The Minneapolis resolution shares many characteristics with the St. Paul resolution, including banning the box, making a “good faith” determination of which positions require background checks, and performing background checks on applicants only after they have been determined to be otherwise qualified. The Council on Crime and Justice, with the support of more than 30 community organizations, was instrumental in getting both the St. Paul and Minneapolis resolutions passed. Minneapolis Resources Minneapolis City Council Resolution, available here. Minneapolis Contacts Councilmember Elizabeth Glidden 88 NELP | BAN THE BOX – FAIR CHANCE GUIDE 37 Minneapolis City Council elizabeth.glidden@ci.minneapolis.mn.us EAST PALO ALTO, CA (ADMINISTRATIVE POLICY APPLIES TO CITY) Inquiries regarding criminal histories are delayed until the applicant is a finalist. East Palo Alto Resource Application, available here. East Palo Alto Contact All of Us or None OAKLAND, CA (CITY ADMINISTRATOR HIRING POLICY APPLIES TO CITY) • Background check only after conditional offer of employment • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report Oakland changed its job application in 2007 to eliminate questions about conviction histories. The new process did not require additional resources. Since implementing this practice, only a small number of applicants have been screened out from employment due to their criminal histories. Working with All of Us or None, the City improved its policy in 2010. The City conducts background checks on applicants after a conditional offer, but only for those positions required by law or the City has made a “good faith determination” that the position warrants it. The City also notifies the applicant of the potential adverse employment action, provides a copy of the background report, and provides the applicant an opportunity to rebut the accuracy or relevancy of the background report. Final decisions are based on job-relatedness and other EEOC factors. Oakland Resources City Administrator memo (Dec. 28, 2010), available here. Letter of support to Asm. Dickinson regarding state legislation (March 28, 2012), available here. Oakland Contact Andrea Gourdine Director, Human Resources Management (510) 238-3112 MULTNOMAH COUNTY, OR (PORTLAND AREA) (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Incorporates EEOC criteria in individualized assessment 89 NELP | BAN THE BOX – FAIR CHANCE GUIDE 38 In October 2007, Multnomah County removed the question about criminal history from both on-line and hard-copy applications. The Multnomah County policy is similar to the policy implemented in the City and County of San Francisco. The Portland-based group, Partnership for Safety and Justice, was instrumental in the adoption of the county hiring policy as part of their "Think Outside of the Box" campaign. When an applicant's criminal history is considered, at a later stage of the hiring process, the Multnomah County policy requires an individualized determination of whether the conviction bears a rational relationship to the job. According to the policy, important factors to consider include the nature of the crime for which the applicant was convicted; any positive changes demonstrated since the conviction; the age at time of arrest; and the amount of time that has elapsed since the arrest occurred. Multnomah County Resource Multnomah County Human Resources Memo (Oct. 10, 2007), available here. Multnomah County Contact Human Resources Department (503) 988-5015 x85015 CAMBRIDGE, MA (ORDINANCE APPLIES TO CITY AND VENDORS) • Background checks only required for some positions • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal prior to adverse determination • Provides copy of background check report In May 2007, Cambridge implemented policies limiting discrimination against people with criminal records in city government positions. In January 2008, the City Council passed an ordinance extending the requirements of the hiring policy to city vendors. Consistent with the City's hiring policy, vendors contracting with Cambridge wait to conduct a criminal background check until the job applicant is found to be "otherwise qualified" for the position. Cambridge Resource Cambridge City Council Ordinance (Jan. 28, 2008), available here. Cambridge Contact Oman Bandar, Former Special Assistant to the Mayor bandar_omar@hotmail.com 90 NELP | BAN THE BOX – FAIR CHANCE GUIDE 39 BALTIMORE, MD (HIRING POLICY APPLIES TO CITY, ORDINANCE APPLIES TO PUBLIC AND PRIVATE EMPLOYERS) • Background check only after conditional offer of employment • Background checks only required for some positions • Ordinance applies to public and private employers In December 2007, with the backing of Mayor Sheila Dixon, the City of Baltimore's Board of Estimates unanimously approved changes to the City's administrative hiring policy. In accordance with the policy, the City removed the criminal history question from its job application. The City also implemented a policy to determine which positions qualified as “Positions of Trust” and thus require a background check. Employment applications for positions that are not positions of trust do not require applicants to disclose prior convictions or any other criminal history information. Where applicable, the applicant's criminal history is reviewed at the final stages in the hiring process. In April 2014, the City Council approved an updated fair-chance ordinance that applies to all employers with 10 or more employees. The new ordinance prohibits inquiry into a job applicant’s conviction history until after a conditional offer of employment and provides administrative and judicial review of and remedial relief for violations. Uniquely, the ordinance provides for misdemeanor criminal charges and a fine to be levied against employers who violate the law. Baltimore Resources Baltimore Policy on Positions of Trust (Feb. 3, 2008), available here. Baltimore Employment Application, available here. Baltimore Ordinance (2014), available here. TRAVIS COUNTY, TX (AUSTIN AREA) (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background check only after applicant selected for hire • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment In April 2008, acting upon the recommendation of Justice and Public Safety and the Director of Human Resources for Travis County, the Travis County Commissioner's Court voted to remove the question about an applicant's criminal history from county job applications. The Travis County Reentry Roundtable Report, which was completed in 2007, recommended changes to the county's hiring practice as a key way to increase employment opportunities for people reentering the community. The Human Resources Department trains hiring managers to consider "circumstances such as length of time since offense, seriousness of the offense, frequency of criminal incidents, and other mitigating factors." 91 NELP | BAN THE BOX – FAIR CHANCE GUIDE 40 Travis County Resources Memo, Travis County Director of Human Resources (April 15, 2008), available here. Travis County Guidelines for Hiring Ex-Offenders (April 21, 2008), available here. Travis County Employment Application, available here. Travis County Contact Steven Huerta, Chairman All of Us or None Texas tac_allofusornone@yahoo.com AUSTIN, TX (ORDINANCE APPLIES TO CITY AND PRIVATE EMPLOYERS) • Background check only after conditional offer of employment • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment • Ordinance applies to public and private employers The City approved a ban-the-box resolution in October 2008. The criminal background investigation questions were removed from the online employment application. On March 24, 2016, Austin’s mayor signed a city council ordinance to cover private employers with at least 15 employees whose primary working location is in the city. The ordinance delays inquiries into an applicant’s conviction record until after a conditional offer of employment and requires an individualized assessment of a candidate’s record that considers, at a minimum, the nature of any offense, the length of time since the offense, and the nature and duties of the job. The new law also creates a civil penalty of up to $500 for each position for which an employer’s hiring practices violate the ordinance. Austin Resources Austin Ban the Box Resolution (Oct. 16, 2008), available here. Director of Human Resources and Civil Services featured in HR Magazine. Austin Ordinance No. 20160324-019 (Mar. 24, 2016), available here. Austin Contacts Council Member Gregorio Casar (512) 978-2104 Mark Washington, Director of Human Resources and Civil Services (512) 974-3400 BERKELEY, CA (HUMAN RESOURCE DEPARTMENT HIRING POLICY APPLIES TO CITY) • Background check only after conditional offer of employment 92 NELP | BAN THE BOX – FAIR CHANCE GUIDE 41 • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment In October 2008, the City of Berkeley’s Human Resources Department eliminated disclosure of conviction history information from the City’s job application at the request of City Council. Berkeley does not require disclosure of conviction history information until an applicant is selected for the position and has received a conditional offer of employment. The Human Resources Department then reviews conviction history information, which is kept confidential. The evaluation includes “an assessment of the relationship between a conviction and the functions of the position; number of convictions; time elapsed since the conviction, evidence of rehabilitation, and any other mitigating circumstances.” The City obtains conviction history from the California Department of Justice for identified public safety, recreation, and cash-handling/asset management positions only; for all other positions, conviction history self-disclosure is required. Police Department hires are exempted. Berkeley Resources Berkeley Hiring Policy Memo (Nov. 18, 2008), available here. Berkeley Employment Application, available here. Berkeley Contacts David Abel Human Resources Manager (510) 981-6807 NORWICH, CT (ORDINANCE APPLIES TO CITY) • Background check only after conditional offer of employment In December 2008, Norwich’s City Council voted to move “Beyond the Box” and reduce barriers to employment for people with criminal records. A large group of advocates including Connecticut Pardon Team, A Better Way Foundation, Evergreen Family Oriented Tree/Clean Slate of New Haven, CABHN, Legal Assistance Resource Center and Greater Hartford Legal Aid worked together to ensure the City Council passed the ordinance, the first of its kind in Connecticut at that time, paving the way for other cities and the State to follow suit. Norwich Resource Norwich Ordinance Section 16-11 (Dec. 1, 2008), available here. Norwich Contact Connecticut Pardon Team, Inc. info@connecticutpardonteam.com NEW HAVEN, CT (ORDINANCE APPLIES TO CITY AND VENDORS) • Background check only after conditional offer of employment 93 NELP | BAN THE BOX – FAIR CHANCE GUIDE 42 • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report In February 2009, the City of New Haven’s Board of Alderman approved an ordinance that requires the City and its vendors to wait to conduct a criminal background check until the job applicant is selected for the position and has received a conditional offer of employment. The City’s Human Resources Department then evaluates the applicant’s criminal history, keeping all information confidential within the Department. The ordinance also provides applicants with a copy of their conviction history report and the opportunity to appeal adverse employment decisions based upon a past conviction within ten days of receiving notice of the decision not to hire. New Haven Resources New Haven Ordinance, available here. New Haven Release of Information, available here. New Haven Contacts Eric Rey, Reentry Coordinator Michael Fumiatti, Director of Purchasing Mayor’s Office, Prison Reentry Initiative City of New Haven ERey@newhavenct.net mfumiatti@newhavenct.net SEATTLE, WA (ORDINANCE APPLIES TO CITY AND PRIVATE EMPLOYERS) • Background checks only required for some positions • Applies to public and private employers • Right to appeal denial of employment • Provides copy of background check report In April 2009, the Personnel Director for the City of Seattle issued a memo to all department heads announcing the completion and implementation of the Citywide Personnel Rule for Criminal Background Checks. On November 13, 2013, Seattle’s Fair Chance Employment Ordinance went into effect. Adding to the state law that prohibits public agencies from refusing to hire someone or grant a license based solely on a criminal conviction, the new policy applies to both the City of Seattle and private employers. The ordinance prohibits employers from inquiring into an applicant’s criminal history until after the employer has identified qualified applicants. Employers are permitted to conduct criminal history investigations and may exclude individuals from employment based on the applicant’s criminal history if there is a legitimate business reason for doing so. Before an employer takes a negative employment decision based on an applicant’s criminal history, the employer must identify to the applicant what information they are using to make the decision and provide the 94 NELP | BAN THE BOX – FAIR CHANCE GUIDE 43 applicant with a minimum of two days in which to correct or explain that information. Seattle Resources Seattle Personnel Director McDermott’s Memo (April 24, 2009), available here. Seattle’s website for Fair Chance Employment Ordinance, available here. Fair-Chance Implementation Case Studies for Government Agencies, available here. Seattle Contact Karina Bull Seattle Office for Civil Rights Karina.Bull@seattle.gov PROVIDENCE, RI (ADMINISTRATIVE POLICY APPLIES TO CITY) In 2008, the Mayor’s Policy Office began investigating the City’s hiring practices and their impact on the ability of people with criminal convictions to successfully transition back into the workforce. After consulting with NELP and HR representatives from three cities that had already successfully “banned the box,” the City agreed to change the hiring policies. In April 2009, the HR department removed the language relating to information on criminal charges from its applications. In addition, the applicant only signs a waiver for a background check once it has been determined that the candidate satisfies the minimum criteria for the position based on qualifications and ability. Providence Resource Providence Employment Application, available here. Providence Contact Margareta Wingate, Deputy Director Human Resources (401) 421-7740 ext. 616 mwingate@providenceri.com HARTFORD, CT (ORDINANCE APPLIES TO CITY AND VENDORS) • Background check only after conditional offer of employment • Background checks only required for some positions • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment In May 2009, Hartford’s City Council recognized that barriers to employment for people with criminal records “creat[e] permanent members of an underclass that threatens the health of the community and undermines public safety.” In response, the City Council passed an ordinance to change the hiring policy of the City and its 95 NELP | BAN THE BOX – FAIR CHANCE GUIDE 44 vendors. It offers important protections to workers, including prohibiting the consideration of arrests that did not lead to conviction; delaying background checks in the hiring process; limiting background checks to specific positions; and providing applicants the opportunity to appeal adverse employment decisions. Hartford Resources Hartford City Ban the Box Policy (April 13, 2009), available here. Hartford Vendor Ban the Box Policy (April 13, 2009), available here. Hartford Contact Sarah Diamond Clean Slate Committee sdiamond193@gmail.com WORCESTER, MA (ORDINANCE APPLIES TO CITY AND VENDORS) • Background checks only required for some positions • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report upon request In June 2009, Worcester’s City Council passed the Fair CORI Practices Ordinance. This ordinance applies to “all persons and businesses supplying goods and/or services to the city of Worcester.” Background checks may only be performed when mandated by law, or when the city or vendor “determines that the position in question is of such sensitivity” that a review of the applicant’s criminal history is warranted. The comprehensive law also requires that the person reviewing the background report be trained to do so, and that they apply a list of factors to be considered. Finally, applicants may appeal if an adverse decision is made based on the criminal history. Worcester Resource Worcester City Ordinance (June 23, 2009), available here. Worcester Contact Steve O’Neill, Executive Director for Inter-state Organizing Ex-Prisoners and Prisoners Organizing for Community Advancement (508) 410-7676 steve@exprisoners.org JACKSONVILLE, FL (ORDINANCE APPLIES TO CITY) • Background check only after applicant selected for hire • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment 96 NELP | BAN THE BOX – FAIR CHANCE GUIDE 45 In 2008, the City Council adopted an ordinance reforming both its hiring procedures and its contractor bidding policies. In July 2009, the City’s Human Resources Department released the revised standard. The directive states that department heads will “not inquire about or consider criminal background check information in making a hiring decision.” Instead, “criminal information disclosure is required as part of the post-offer new hire process.” (emphasis in original). The application instructions even encourage people with a criminal record to apply for city jobs. The criminal background check screening is centralized in the Human Resources Department. Moreover, the screening process requires taking into account the specific duties of the job, the age of the offense, and rehabilitation. Denied applicants may appeal to Human Resources. Contractors are required to tally job opportunities for people with criminal records and report back to the City. Jacksonville Resources Jacksonville City Council Ordinance (Nov. 10, 2008), available here. Jacksonville Human Resources Directive (July 8, 2009), available here. Jacksonville Background Screening Summary (May 10, 2010), available here. Jacksonville Contact Employee Services Department (904) 630-1287 BRIDGEPORT, CT (CIVIL SERVICE RULES APPLY TO CITY) • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment In October 2009, Bridgeport’s City Council ratified changes to the City’s civil service rules regarding criminal history investigations of applicants. Under the rules, the personnel director will seek information about applicants’ criminal histories only after the applicant has been found “otherwise eligible” to take the civil service examination. The initial employment application includes a disclaimer that criminal history information will be sought later in the application or examination process. When considering an applicant’s record, the personnel director will consider individualized factors such as the nature, job-relatedness, and age of an offense. Candidates who are disqualified because of their criminal record have the right to appeal the personnel director’s decision to the Civil Service Commission, which has the authority to “grant the appellant such relief as the Commission deems appropriate or to deny the appeal.” Bridgeport Resource Bridgeport Resolution Amending Civil Service Rules (Oct. 5, 2009), available here. Bridgeport Contact Nadine Nevins, Managing Attorney 97 NELP | BAN THE BOX – FAIR CHANCE GUIDE 46 Connecticut Legal Services nnevins@connlegalservices.org KALAMAZOO, MI (HIRING POLICY APPLIES TO CITY AND VENDORS) • Policies apply to vendors/contractors doing business with the City In January 2010 the city manager announced that the city would no longer ask about prior criminal history on its applications for employment. This decision came after months of pressure from a newly formed coalition, spearheaded by the Community Workers Center of Kalamazoo and convened by the Michigan Organizing Project. On May 16, 2016, the Kalamazoo City Commission unanimously passed Resolution 16-20, requiring certain entities—those seeking (1) to provide goods and services to the City in the amount of more than $25,000; (2) a tax abatement; or (3) an Economic Opportunity Fund (EOF) loan—to demonstrate a commitment that they do not use past criminal histories to discriminate when hiring. More specifically, such entities must remove from initial job applications any questions about prior arrests or convictions. Applicants must also be provided with an opportunity to review and respond to any potentially disqualifying record. Implementing the resolution required amendments to at least three city policies, as explained in a report from the city attorney. Kalamazoo Resource Kalamazoo City Commission Minutes (May 16, 2016), available here (page 106). Kalamazoo Resolution No. 16-20 (May 16, 2016), available here. Commission Agenda Report from City Attorney (May 6, 2016), available here. Amendments to Kalamazoo Economic Opportunity Fund Guidelines, available here. Amendments to Kalamazoo Tax Abatement Policy Amendments, available here. Amendments to Kalamazoo Ex-Offender Purchasing Policy, available here. Kalamazoo Contact Michigan Organizing Project (269) 344-2423 MEMPHIS, TN (ORDINANCE APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report In June 2010, the Memphis City Council passed an ordinance to reduce barriers to employment for the City’s estimated 8,915 citizens on probation or parole. The ordinance bans the box and, “except as otherwise dictated by state and federal law,” permits inquiry into an applicant’s criminal history only after the applicant has been determined to be otherwise qualified. However, the ordinance still requires applicants to complete a form listing their entire criminal history prior to the City conducting a background check. 98 NELP | BAN THE BOX – FAIR CHANCE GUIDE 47 Memphis Resource Memphis City Ordinance (May 18, 2010), available here. Memphis Contact DeAndre Brown, Executive Director Lifeline to Success dbrown@lifeline2success.org CINCINNATI, OH (CITY COUNCIL MOTION APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Background check only after conditional offer of employment • Right to appeal denial of employment • Provides copy of background check report In August 2010, the City Council passed a motion in support of fair hiring. The City’s employment applications no longer request information on an applicant’s criminal history and background checks are conducted only after a contingent offer of employment has been made. If a criminal background check is the basis for denying employment, the applicant receives a copy and is given at least 10 business days to dispute the information. When considering an applicant’s criminal history in making an employment decision, the Human Resources Department must consider whether the past offense(s) directly relate to the job responsibilities, the age of the person at the time of the offense(s), and any evidence of rehabilitation. Cincinnati Resource Cincinnati Motion in Support of Fair Hiring (June 9, 2010), available here. Cincinnati Contact Stephen Johnson Grove, Deputy Director for Policy Ohio Justice & Policy Center sjohnsongrove@ohiojp.org DETROIT, MI (ORDINANCE APPLIES TO CITY AND VENDORS) • Policies apply to vendors/contractors doing business with the City In September 2010, Detroit’s City Council voted unanimously to ban the box on City applications. The amendments to the Detroit City Code prohibit inquires or consideration concerning criminal convictions for City employees until an applicant is interviewed or is found to be otherwise qualified for employment by the City. The ordinance further revises the City’s job application to include a statement that “criminal convictions are not a bar to City employment, provided, that the prior criminal activity is not directly related to the position being sought.” As of July 1, 2012, the City has required business vendors and contractors to remove the conviction history question from job applications. 99 NELP | BAN THE BOX – FAIR CHANCE GUIDE 48 Detroit Resources Detroit City Ordinance (Sept. 13, 2010), available here. Detroit Contractor Ordinance (July 1, 2012), available here. PHILADELPHIA, PA (ORDINANCE APPLIES TO CITY AND PRIVATE EMPLOYERS) • Policies apply to public and private employers in the city • Incorporates EEOC criteria in individualized assessment • Background check only after conditional offer of employment • Right to appeal denial of employment • Provides copy of background check report On March 31, 2011, Philadelphia became the first city to ban the box for both public and private positions. On December 15, 2015, Philadeplhia Mayor Michael Nutter signed an amended version of the ordinance into law that prohibits all employers from inquiring into applicants’ conviction histories any time before conditional offers are made. The amendment also restricts inquiries to the last seven years of applicants’ records; requires employers to determine whether a connection exists between an applicant’s convicted offense and the particular position before disqualifying the applicant; requires employers to notify applicants in writing of rejections and to provide the applicant a copy of the criminal history report; and allows applicants 10 business days following a rejection to provide the employer an explanation or evidence of an innaccuaracy in the criminal history report. On the day he signed the amended ordinance, Mayor Nutter also issued Executive Order No. 5-15, applicable to hiring by city agencies. The City Council unanimously passed another amendment to the law on December 10, 2020, which was signed by Philadelphia Mayor Jim Kenney on January 20, 2021. The amendment extends fair chance protections beyond job applicants to existing employees as well as to independent contractors and “gig” workers. The literal text of the ordinance also appears to prohibit any background checks not required by law. The amendment took effect April 1, 2021. Philadelphia Resources Philadelphia City Council Ordinance (Feb. 17, 2011), available here. Philadephia Office of Human Resources Report - Criminal Records Background Screening and Hiring Policy (Nov. 10, 2015), available here. Philadelphia City Council Ordinance (Dec. 15, 2015), available here. Philadelphia Mayor Executive Order No. 5-15 (Dec. 15, 2015, as amended Dec. 23, 2015), available here. Philadelphia City Council Ordinance (Jan. 20, 2021), available here. 100 NELP | BAN THE BOX – FAIR CHANCE GUIDE 49 Philadelphia Contact Brendan Lynch, Staff Attorney Community Legal Services of Philadelphia blynch@clsphila.org DISTRICT OF COLUMBIA (WASHINGTON D.C.) (ORDINANCE APPLIES TO DISTRICT AND PRIVATE EMPLOYERS) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment • Policies apply to public and private employers in the District In December 2010, the nation’s capital joined the fair-chance movement by passing the Returning Citizens Public Employment Inclusion Act of 2010, which went into effect in 2011 for public employers. On July 14, 2014, the Council of the District of Columbia voted unanimously to pass the Fair Criminal Records Screening Act of 2014, which applies to private employers. Under the new law, an employer that employs 11 or more employees in the District cannot make any inquiry into an applicant’s conviction until after making a conditional offer of employment. A conditional offer can only be withdrawn for a “legitimate business reason,” which must consider job-relatedness of the offense, time passed, rehabilitation and other factors. A complaint process may be initiated with the Office of Human Rights and violation of the act may result in fines, of which half shall be awarded to the complainant. Reporting requirements are also included in the law such as voluntarily provided data on the hiring of applicants with records. District of Columbia Resources Fair Criminal Record Screening Amendment Act of 2014, available here. Fair-Chance Implementation Case Studies for Government Agencies, available here. District of Columbia Contact Elliot Imse, Director of Policy & Communications District of Columbia Office of Human Rights (202) 727-4559 DURHAM, NC (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check only after conditional offer In February 2011, the City removed questions about criminal history from all employment applications. Potential employees who have been given a conditional offer of employment are subject to a background check. Durham Resources City Application, available here. Human Resource Management Memo (April 18, 2011), available here. “The Benefits of Ban the Box: A Case Study of Durham, NC”, available here. 101 NELP | BAN THE BOX – FAIR CHANCE GUIDE 50 Durham Contact Southern Coalition for Social Justice COMPTON, CA (RESOLUTION AND HIRING POLICY APPLIES TO CITY AND CONTRACTORS) • Background check only after conditional offer • Policies applies to contractors doing business with the City • Incorporates EEOC criteria in individualized assessment On April 5, 2011, the City of Compton passed a resolution to provide equal employment opportunities for people with criminal records, effective July 1, 2011. A criminal background check is delayed until after a conditional offer of employment is made. The city prohibits the consideration of any convictions that are not job-related in the course of an employment decision. Factors to consider include: (1) whether the position provides the opportunity for the commission of a similar offense; (2) whether the individual has committed other offenses since the conviction; (3) the nature and gravity of the offense and; (4) time since the offense. In order to promote model hiring policies, the City requires employers that receive local government contracts to adopt the same hiring policies. Compton Resources Compton Resolution (April 5, 2011), available here. Compton Standard Operating Manual (July 1, 2011), available here. Compton Contact A New Way of Life (323) 563-3575 NEW YORK CITY, NY (APPLIES TO CITY, PRIVATE EMPLOYERS, AND LICENSING) • Background check only after conditional offer. • Policy applies to public and private employers in New York City that have more than four employees • Incorporates EEOC criteria in individualized assessment On June 10, 2015, the New York City Council passed the Fair Chance Act, prohibiting employers in New York City from asking about a job applicant’s conviction record until after extending a conditional offer of employment. Before rescinding such an offer, an the employer must conduct an individualized assessment and provide the applicant with a copy of both that analysis and any background report. The employer must then hold open the job for several days (initially three days, later amended to five business days in 2021) to allow time for the employee to respond and the employer to weigh the candidate’s evidence of rehabilitation. The law also prohibits employers from considering certain types of records when making employment decisions, even after a conditional offer. The law includes a private right of action, including attorneys’ fees. The law took effect on October 27, 2015. 102 NELP | BAN THE BOX – FAIR CHANCE GUIDE 51 The agency charged with enforcing the law, the New York City Commission on Human Rights, finalized rules implementing the law, effective August 5, 2017. On December 10, 2020, the New York City Council adopted an amendment to the Fair Chance Act, adding unsealed violations and pending adjournments in contemplation of dismissal (ACDs) to the types of records employers may never consider at any point in the hiring process. The amendment also clarifies that an individualized assessment is required when making employment decisions (including termination decisions) based on pending criminal charges. The law (Local Law No. 4 of 2021) was enacted without the mayor’s signature on January 10, 2021, and the changes took effect on July 29, 2021. The New York City Commission on Human Rights revised its legal enforcement guidance for the Fair Chance Act on July 15, 2021. Under state law (N.Y. Correct. Law Art. 23-A) that predated the Fair Chance Act, a candidate may be rejected based on conviction history only if it is directly related to the job or poses an unreasonable risk based on certain factors, such as the time passed since the offense and its severity. Prior to the passage of the Fair Chance Act in 2015, applications for public employment in New York City did not include inquiries about criminal history pursuant to an August 2011 executive order from then-Mayor Michael Bloomberg. New York City Resources NYC Commission on Human Rights Legal Enforcement Guidance (July 15, 2021), available here. New York City Local Law No. 4 of 2021 (Jan. 11, 2021), available here. NYC Commission on Human Rights Rules (Aug. 5, 2017), available here. New York City Fair Chance Act (June 10, 2015), available here. Executive Order No. 151 (Aug. 4, 2011), available here. Article 23-A of the New York Correction Law, available here. New York City Contact Paul Keefe, Supervising Attorney New York City Commission on Human Rights pkeefe@cchr.nyc.gov CUMBERLAND COUNTY, NC (APPLIES TO COUNTY) On September 6, 2011, the Cumberland County Commissioners unanimously voted to ban the box and implement a new pre-employment background check policy. Cumberland County Contact Julean Self Assistant Human Resources Director jself@co.cumberland.nc.us 103 NELP | BAN THE BOX – FAIR CHANCE GUIDE 52 CLEVELAND, OH POLICY (ADMINISTRATIVE POLICY APPLIES TO CITY) On September 26, 2011, the City of Cleveland announced its ban the box policy. Developed in collaboration with the Ohio Justice & Policy Center, the policy removes the checkbox on city job and civil service testing applications that asks whether the applicant has a felony conviction. Background checks will now be performed only on finalists for a position. Cleveland Contacts Natoya Walker Minor, Chief of Public Affairs Stephen Johnson Grove, Deputy Director for Policy Ohio Justice & Policy Center Mayor’s Office sjohnsongrove@ohiojpc.org nwalker@city.cleveland.oh.us MILWAUKEE COUNTY, WI (RESOLUTION APPLIES TO COUNTY) On October 7, 2011, the Milwaukee County Board of Supervisors voted to remove questins about conviction history from the county initial employment application. The resolution further called on the county director of intergovernmental relations to convey to the governor and Wisconsin legislature that the State of Wisconsin should follow the lead of Milwaukee County and adopt ban-the-box legislation applicable to all public and private employers in the state. Milwaukee County Resource Milwaukee County Resolution No. 11-581, available here. Milwaukee County Contact Carol Rubin, President MOSES carolrubin3@gmail.com RICHMOND, CA (RESOLUTION APPLIES TO CITY AND VENDORS) • Background checks only required for some positions • Policy applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment On November 22, 2011, the Richmond City Council passed a measure to ban the box for city applications, spurred by the Safe Return Project-Pacific Institute, which researched the status of formerly incarcerated Richmond residents and is led by formerly incarcerated advocates. In July 2013, the City Council voted to broadly expand the policy to companies with more than 10 employees who do business with the city, as well as their subcontractors. The new ordinance prohibits inquiry into an applicant’s criminal history at any time unless a background investigation is required by State or Federal law or the position has been defined as “sensitive.” Richmond, CA Resources Richmond City Resolution 110-11 (Nov. 22, 2011), available here. 104 NELP | BAN THE BOX – FAIR CHANCE GUIDE 53 Richmond City Council Ordinance (July 30, 2013), available here. Memo from Councilmember Beckles (July 30, 2013), available here. Richmond, CA Contacts Safe Return Project group@safereturnproject.org ATLANTIC CITY, NJ (ORDINANCE APPLIES TO CITY AND VENDORS) • Background check only after conditional offer • Policies applies to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment Approved by Mayor Langford on December 23, 2011, Atlantic City, NJ banned the box for city positions. The ordinance also requires all vendors doing business with the City to have practices, policies and standards that are consistent with the City’s, and makes consideration of vendors’ hiring policies, practices and standards part of the criteria to be considered when awarding contracts. However, with the adoption of the New Jersey Opportunity to Compete Act, effective March 1, 2015, which applies to all public and private employers with 15 or more employees, this local ordinance is superseded by the state law. Atlantic City Resource City of Atlantic City Ordinance (Dec. 7, 2011), available here. MUSKEGON COUNTY, MI (APPLIES TO COUNTY) Recognizing the need to prioritize employment opportunities for successful re- entry, the Muskegon County Board of Commissioners voted to remove inquiry into criminal history from the written application for all opportunities unless required by local, state, or federal law. Muskegon County Resource Muskegon County Resolution (Jan. 12, 2012), available here. Muskegon County Contact Chairman Mahoney commissioners@co.muskegon.mi.us CARSON, CA (RESOLUTION APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Background check only after conditional offer of employment On March 6, 2012, the City Council of Carson passed a resolution to support ban the box efforts. The resolution describes ban the box as delaying disclosure of past convictions until after an offer of employment is made. At that point, a separate 105 NELP | BAN THE BOX – FAIR CHANCE GUIDE 54 conviction history form is collected and investigated for an individualized assessment that considers the length of time since the conviction, relevance to the position, and evidence of rehabilitation. Carson Resource Carson City Council Resolution (March 6, 2012), available here. Carson Contact A New Way of Life (323) 563-3575 HAMILTON COUNTY, OH (CINCINNATI AREA) (APPLIES TO COUNTY) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment In March 2012, the County modified its application for county jobs in order to remove criminal record inquiries from the job application. After a conditional job offer has been made, the county then evaluates criminal history based on the requirements of the job and the nature of the offense. This assessment does not apply to positions where there are statutory prohibitions on hiring people with certain kinds of convictions. If a person is denied, he or she is provided with an explanation of the rejection and may request a copy of the background check that shows the disqualifying offense. Hamilton Resource Hamilton Human Resources Policy Manual, available here. Hamilton Contacts David Helm, Assistant Director Lori Chaney, Manager Human Resources Department Human Resources Department david.helm@hamilton-co.org lori.chaney@hamilton-co.org DAYTON, OH (APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment The City lacks a formal policy, but has removed the conviction history question from the job application. The City conducts a background check before the candidate list is sent to the relevant hiring department, but after the candidate list has been narrowed. For non-sensitive positions the City considers the age of the offense and the nature of the conviction. If individuals are denied after this assessment, they have the right to appeal the decision to the Civil Service Board and are also provided a written explanation of the denial. Dayton Contact 106 NELP | BAN THE BOX – FAIR CHANCE GUIDE 55 Ken Thomas, Senior Employment Manager Civil Service Department ken.thomas@daytonohio.gov PIERCE COUNTY, WA (TACOMA AREA) (APPLIES TO COUNTY) • Incorporates EEOC criteria in individualized assessment The County does not have a formal policy, but has removed the question about criminal history from its application for employment with the County, and follows the EEOC guidance regarding the consideration of criminal records. With the exception of law enforcement positions, the County generally conducts background checks on the final candidate only and often after a conditional offer of employment has been made. If a conviction disqualifies the applicant, the County provides a pre- adverse action notice and explains how the applicant can obtain the record used in the decision. The applicant normally has time to review the record and correct inaccuracies before a final decision is made. SANTA CLARA COUNTY, CA (SAN JOSE AREA) (APPLIES TO COUNTY) On May 1, 2012, the County adopted a procedure to remove the question on the job application that requires candidates to disclose criminal conviction histories. Once candidates have been tentatively selected, Human Resources will evaluate the conviction history. The Board of Supervisors supported this reform to eliminate the unnecessary disqualification of job applicants and increase the county’s hiring pool of candidates. Santa Clara County Resource Santa Clara Employment Application, available here. Santa Clara County Contacts Supervisor Dave Cortese Reverend Jeff Moore dave.cortese@bos.sccgov.org President of NAACP San Jose Chapter info@sanjosenaacp.org FRANKLIN COUNTY, OHIO (APPLIES TO COUNTY) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment Effective June 19, 2012, Franklin County’s Resolution 45712 removed questions about criminal background from its application for public employment. While all employees are subject to a background check at the time of hire, any offenses are reviewed to determine if the offense was “egregious or directly germane to the position.” Positions at the Sheriff’s office are exempt from the policy. Franklin County Contact Robert Young, Human Resources Director 107 NELP | BAN THE BOX – FAIR CHANCE GUIDE 56 rjyoung@franklincountyohio.gov SPRING LAKE, NC (ADMINISTRATIVE POLICY APPLIES TO TOWN) • Incorporates EEOC criteria in individualized assessment Effective June 25, 2012, the Town of Spring Lake adopted a comprehensive statement of policy regarding criminal background checks for positions with the Town. According to the policy, an applicant’s conviction will be reviewed on a case- by-case basis. The policy offers one of the most comprehensive lists of factors to determine whether there is a “substantial relationship between the conviction and the position” and whether the applicant should be excluded. Spring Lake Resources Spring Lake Job Application, available here. Administrative Policies and Procedures (July 16, 2012), available here. Spring Lake Contact Southern Coalition for Social Justice NEWPORT NEWS, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment In a memo dated July 13, 2012 from the City Manager, the administration outlines a plan to remove the question about conviction histories from city job applications by October 1, 2012. Exempted positions include those in public safety, child welfare, and elder care departments. The memo specifically references the EEOC guidance and the City’s policy of complying with the guidance. The City was petitioned to consider ban the box in May by Good Seed, Good Ground, a local non-profit group whose mission is to rebuild the lives of youth. Newport News is the first city in Virginia to ban the box. Newport News Resource City Manager and Human Resources Manager Memo (July 13, 2012), available here. Newport News Contact Good Seed Good Ground (757) 244-0199 info@goodseedgoodground.org HAMILTON COUNTY, TN (CHATTANOOGA AREA) (APPLIES TO COUNTY) • Background check only after conditional offer of employment The County removed all questions relating to criminal history from the county job application in 2012. The procedure was changed to ensure that the application process would be unbiased. The county now runs a background check after selecting 108 NELP | BAN THE BOX – FAIR CHANCE GUIDE 57 a candidate for an open position. If the background check reveals a history, the candidate is allowed to explain the circumstances. Hamilton County Contact Mike Dunne, External Communications Manager Hamilton County Mayor's Office michaeld@hamiltontn.gov CUYAHOGA COUNTY, OH (CLEVELAND AREA) (ORDINANCE APPLIES TO COUNTY) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment In August 2012, the County Council passed an ordinance that prohibits the County from inquiring about convictions on job applications. The Council recognized that only considering conviction history after a conditional job offer “promotes the fair consideration of all applicants for employment and contributes to the County’s reentry efforts.” The ordinance requires the following factors to be considered: the nature of the conviction, the length of time since the conviction, the specific job duties of the position, and any evidence of rehabilitation. The ordinance went into effect on September 30, 2012. Cuyahoga County Resources Cuyahoga County Ordinance No. O2012-0005 (Aug. 28, 2012), available here. Cuyahoga County Code Section 306, available here. NEWARK, NJ (ORDINANCE APPLIES TO CITY, PRIVATE EMPLOYERS, LICENSING, AND HOUSING) • Background check only after conditional offer • Background checks only required for some positions • Applies to private employers, licensing, and housing • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report On September 19, 2012, the Municipal Council passed a comprehensive ordinance. The ordinance applies to the City, private employers, local licensing, and to housing as well. Inquiries into an applicant’s criminal history are delayed until a conditional offer of employment is made by the employer, and there is a limited “lookback” period for offenses, ranging from eight years for indictable offenses and five years for disorderly persons convictions or municipal ordinance convictions. However, with the adoption of the New Jersey Opportunity to Compete Act, effective March 1, 2015, which applies to all public and private employers that employ 15 or more employees, this local ordinance is superseded by the state law. Newark Resources 109 NELP | BAN THE BOX – FAIR CHANCE GUIDE 58 Newark Ordinance #12-1630 (Sept. 19, 2012), available here. Newark Contact New Jersey Institute for Social Justice (973) 624-9400 SUMMIT COUNTY, OH (AKRON AREA) (POLICY APPLIES TO COUNTY) • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment In September 2012, based on the recommendation of the Human Resources Department, the Summit County Executive, Russell M. Pry, authorized the removal of conviction history questions from the job application. Background checks are only required for security-sensitive positions and are conducted after the interview. If an applicant has a conviction, then the County considers the age and nature of the offense and the duties of the relevant job position. Summit County Contact Christine Higham, Deputy Director Human Resources Department chigham@summitoh.net DURHAM COUNTY, NC (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background check only after applicant selected for hire • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment • Provides copy of background check report Effective October 1, 2012, the County does not inquire into an applicant’s criminal history on an initial employment application form, unless explicitly mandated by law. The threshold for inquiry is after an applicant’s credentials have been reviewed, it has been determined that the applicant is otherwise qualified for a position, and the applicant has been recommended for hire by the department where the vacancy exists. Records of criminal arrests, dismissals, or convictions which have been expunged may not be used. The policy explicitly incorporates language from the 2012 updated EEOC guidance—for example, applicants are provided the opportunity for an individualized assessment. Durham County Resources Durham County Administrative Procedure (effective Oct. 1, 2012), available here. “The Benefits of Ban the Box: A Case Study of Durham, NC”, available here. Durham County Contact Southern Coalition for Social Justice 110 NELP | BAN THE BOX – FAIR CHANCE GUIDE 59 CARRBORO, NC (APPLIES TO TOWN) • Incorporates EEOC criteria in individualized assessment On October 16, 2012, the Carrboro Board of Aldermen voted unanimously to ban the box on Town of Carrboro job applications. The Orange County Partnership to End Homelessness initially proposed the measure. Carrboro Resources Carrboro Employment Application, available here. Human Resources Memo (Oct. 16, 2012), available here. WILMINGTON, DE (MAYORAL EXECUTIVE ORDER AND CITY COUNCIL RESOLUTION APPLY TO CITY) • Background check only after conditional offer On December 6, 2012, the Wilmington City Council passed a resolution urging the City’s Administration to ban the box on City employment applications. In response, Mayor Baker signed Executive Order 2012-3 on December 10, 2012, banning the box on initial job applications with the City. Wilmington will now conduct criminal background checks on applicants for non-uniformed positions after a conditional offer of employment has been provided. Wilmington Resources Wilmington Executive Order 2013-3, available here. Wilmington City Council Resolution 12-086, available here. PITTSBURGH, PA (ORDINANCE APPLIES TO CITY AND CONTRACTORS) • Policies applies to vendors/contractors doing business with the City • Right to appeal denial of employment On December 17, 2012, the Pittsburgh City Council passed two ban the box ordinances; one that applies to city employment and one that applies to contractors. The Formerly Convicted Citizens Project worked on the campaign for two years. Pittsburgh Resources Pittsburgh Ordinance 2012-0013, applies to city positions, available here. Pittsburgh Ordinance 2012-0015, applies to contractors, available here. Pittsburgh Contact Dean Williams, Director, Formerly Convicted Citizens Project (412) 295-8606 fccppitt@gmail.com ATLANTA, GA (ORDINANCE APPLIES TO CITY) • Provides copy of background check 111 NELP | BAN THE BOX – FAIR CHANCE GUIDE 60 On January 1, 2013, the City removed the conviction history question from its job application with mayoral support. In October 2014, the City Council unanimously voted to codify the policy in ordinance. Under the ordinance, the City may only inquire into an applicant’s conviction history once it has determined that the applicant is otherwise qualified for the position. If the City then makes an adverse employment action based on the results of the background check, the City must notify the applicant of the decision within 30 days and provide the applicant with a copy of the background check highlighting the disqualifying convictions. Atlanta Resource Atlanta Ordinance No. 14-O-1399 (Oct. 6, 2014), available here. Atlanta Contact Charmaine Davis, Georgia State Director & Shannan Reaze, Organizer 9to5 and 9to5 Atlanta Charmaine@9to5.org; Shannan@9to5.org Marilynn Winn Women on the Rise marilynn@rjactioncenter.org TAMPA, FL (ORDINANCE APPLIES TO CITY) • Background check after conditional offer On January 14, 2013, the Mayor of Tampa signed the ban the box ordinance approved by the City Council. Advocates in Tampa continue to work on expanding the ordinance to include contractors. Tampa Resource Tampa Ordinance 2013-3 (Jan. 14, 2013), available here. Tampa Contact Sharon Streater, HOPE Lead Organizer HOPE hopeinc@fdn.com CANTON, OH (CIVIL SERVICE COMMISSION RULES APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment The Canton Civil Service Commission has amended the civil service examination rules. Under the new amendment, the Civil Service Commission will now examine applicants and may certify as eligible a person convicted of a felony or misdemeanor who is not precluded from holding a specific position under federal or state law, provided the conviction does not bear a direct and substantial relationship to the position. To determine whether a conviction bears a direct and substantial 112 NELP | BAN THE BOX – FAIR CHANCE GUIDE 61 relationship to the position, the Human Resources Director will consider a list of factors, including EEOC-type factors. Canton Resource Canton Rule IV, Examinations, Section 15, Amendment, available here. Canton Contact Joseph Martuccio, Law Director City of Canton joe.martuccio@cantonohio.gov RICHMOND, VA (RESOLUTION APPLIES TO CITY) On March 25, 2013, the Richmond City Council unanimously passed a resolution to ban the box on City job applications. Except when required by federal or state law or for positions that the City Council, by resolution, has determined should be exempt, initial job applications may no longer inquire into an applicant’s criminal conviction history. Attached to the resolution is a document that includes those positions determined by the City Council to be exempt from the ban the box ordinance. Richmond Resource Richmond Resolution No. 2013-R, 87-85 (March 25, 2013), available here. Richmond Contact Richard Walker, Founder & CEO Bridging the Gap in Virginia rwalker@bridgingthegapinvirginia.org KANSAS CITY, MO (ORDINANCE APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment Recognizing the role of employment in reducing recidivism, Kansas City joined the movement to ban the box on April 4, 2013. The ordinance amended Rule IV, Examinations, Section 15, and delayed conviction inquiries until after the applicant has been determined “otherwise qualified” and interviewed for the position. The ordinance further prohibited the City from using or accessing the following criminal records information: records of arrests not followed by valid conviction; convictions which have been annulled or expunged; pleas of guilty without conviction; and misdemeanor convictions for which no jail sentence can be imposed. Further, suspended imposition of sentence is not considered a conviction for purposes of the ordinance. The ordinance was limited to City hiring, but it urged private employers to adopt fair hiring practices. 113 NELP | BAN THE BOX – FAIR CHANCE GUIDE 62 On February 1, 2018, the Kansas City Council adopted an ordinance applicable to private employers. Similar to the 2013 ordinance, it requires employers to delay inquiries about a job applicant’s criminal history until after the applicant is interviewed and determined to be otherwise qualified for the position. The ordinance also prohibits employers from basing hiring or promotional decisions on criminal history unless the conviction is “reasonably related to the duties and responsibilities of the position”and the employer has considered all informataion available, including the severity of the record, time passed since the offense, and whether the person has been convicted of multiple offenses. The ordinance excludes positions for which employers are barred by local, state, or federal law or regulation from hiring a person with certain past convictions. The ordinance is effective as of June 9, 2018. Kansas City Resources Kansas City Ordinance 130230 (Apr. 4, 2013)R, available here. Kansas City Ordinance 180034 (Feb. 1, 2018), available here. Kansas City Contact Kansas City Human Relations Department (816) 513-1836 hrdgeneral.inquiries@kcmo.org STARK COUNTY, OH (ADMINISTRATIVE POLICY APPLIES TO COUNTY) In May 2013, County Commissioners amended the employee handbook and employment application forms to remove language that prohibits them from hiring anyone convicted of a felony. PORTSMOUTH, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) On June 2013, the Portsmouth City Manager made the administrative decision to ban the box. The City Manager notified the City Council that City employment applications would no longer request criminal history information from job applicants. Portsmouth Resource Letter from Portsmouth Human Resources Director (July 2013), available here. Portsmouth Contact James Bailey, Regional Director CURE Virginia, Inc. jbailey383@aol.com BUFFALO, NY (ORDINANCE APPLIES TO CITY, VENDORS, AND PRIVATE EMPLOYERS) • Applies to public and private employers and vendors 114 NELP | BAN THE BOX – FAIR CHANCE GUIDE 63 On June 11, 2013, the Common Council of Buffalo banned the box for public and private employers within the city of Buffalo as well as for vendors who do business with the city. The ordinance permits consideration of a candidate's criminal history only after an application has been submitted and not before the initial interview. Buffalo Resource Buffalo Ordinance Amendment (June 2013), available here. Buffalo Contact Jeffrey M. Conrad, Western New York Regional Director Center for Employment Opportunities (716) 842-6320 ext 501 jconrad@ceoworks.org NORFOLK, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment On July 23, 2013, the Norfolk Assistant City Manager made a presentation to the City Council informing the Council that the City had decided to administratively ban the box on all City applications except for those positions that are deemed sensitive in nature. The City will continue with the current practice of reviewing the criminal history of all applicants by weighing the gravity of the offense, the length of time since conviction, and whether the conviction is applicable to the job. Norfolk Resources Administrative policy announcement (July 2013, begins at 37:38), available here. Presentation by Assistant City Manager (July 2013), available here. Norfolk Contact James Bailey, Regional Director CURE Virginia, Inc. (713) 582-1316 jbailey383@aol.com PASADENA, CA (ADMINISTRATIVE POLICY APPLIES TO CITY) In July 2013, the City Manager removed the conviction history question from the city job application. Pasadena Contacts Jaylene Moseley Tiffany Jacobs-Quinn, Human Resources Manager Flintridge Center City of Pasadena Human Resources Department Jaylene@flintridge.org tjacobsquinn@cityofpasadena.net PETERSBURG, VA (RESOLUTION APPLIES TO CITY) • Background check only after conditional offer of employment 115 NELP | BAN THE BOX – FAIR CHANCE GUIDE 64 On September 3, 2013, the Petersburg City Council adopted a resolution to amend the City’s job applications to remove inquiry into an applicant’s criminal history. The Council had directed the Human Resources department to provide information on ban the box. The Director of Human Resources submitted a memo that recommended the Council adopt the ban the box resolution. The City continues to use a supplemental questionnaire to obtain criminal history information from applicants applying to safety sensitive and/or security related positions. Petersburg Resources Petersburg Memo and Resolution, available here. Petersburg Employment Application, available here. Petersburg Supplemental Questionnaire, available here. VIRGINIA BEACH, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check after conditional offer of employment The City removed the conviction history inquiry from its general job application in November 2013. The Human Resources Department proposed the change, which was then reviewed by the City Attorney and approved by the City Manager. According to the policy, background checks are conducted on all applicants who are conditionally offered employment with the City. The inquiry takes into account the nature of the offense and its relation to the work sought. If an applicant is denied a position because of information on their background check, the applicant may ask about the information that contributed to the rejection. Virginia Beach Resources Virginia Beach Job Application, available here. Human Resources Memorandum (Oct. 16, 2013), available here. Announcement to Employees, available here. Virginia Beach Contact Bill Edwards, Manager of Staffing & Compensation Department of Human Resources wedwards@vbgov.com AKRON, OH (ADMINISTRATIVE POLICY APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment On October 29, 2013, the Civil Service Commission adopted several policy changes for the city’s approximately 1,800 jobs. Under the revised policy, applicants to non- safety-sensitive positions need not check the box asking about convictions. The policy requires a background check before applicants are certified for an interview. If the background check reveals a conviction, then a committee evaluates a candidate’s suitability for the job based on factors including job-relatedness and 116 NELP | BAN THE BOX – FAIR CHANCE GUIDE 65 time passed since the conviction. A candidate who is rejected may appeal the decision to the personnel director. An appeal allows the applicant an opportunity to present rehabilitation or relevant evidence. Akron Resource Akron Conviction Records Policy for Classified Positions, available here. Akron Contact Kris Rininger, Personnel Analyst II Personnel Department krininger@akronohio.gov LUCAS COUNTY, OH (TOLEDO AREA) (POLICY APPLIES TO COUNTY) On October 29, 2013, Lucas County Commissioners voted unanimously to remove all questions about an applicant’s criminal background from applications for employment with any department under the Commissioners’ authority. The county only conducts a background check after an applicant is selected as a finalist. Lucas County Resource Lucas County Press Release (Oct. 28, 2013), available here. CLEARWATER, FL (ADMINISTRATIVE POLICY APPLIES TO CITY) • Incorporates EEOC criteria in an individualized assessment At the recommendation of the City Attorney, the City removed the conviction record inquiry from its employment application in 2013 to comply with the related EEOC guidance. Criminal background checks are required for all applicants, but are not conducted until after the City narrows down its list of qualified candidates. In addition, the City follows the EEOC’s guidance when determining whether a conviction relates to the position for which an applicant has applied. The background check is limited to convictions and the City does not consider arrests. Clearwater Resource Employment Application available here. Clearwater Contact Dina Hyson, Human Resources Manager (727) 562-4871 dina.hyson@myclearwater.com MASSILLON, OH (CIVIL SERVICE REQUIREMENT APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment On January 3, 2014, the Massillon Civil Service Commission voted to adopt a “ban the box” policy and disclosure requirement for the City. The City will no longer seek 117 NELP | BAN THE BOX – FAIR CHANCE GUIDE 66 criminal history information from applicants on initial job applications. After the City determines the best candidates for the position, it will ask about criminal history information during the interview. The City will also continue to perform criminal background checks. While the City will consider specific factors, no appeal or waiver process is outlined in the memo explaining the policy. Massillon Resource Massillon Civil Service Commission Letter (Jan. 17, 2014), available here. NEW ORLEANS, LA (ORDINANCE APPLIES TO CITY & VENDORS) • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report • Applies to public employers and vendors On January 10, 2014, the City of New Orleans Chief Administrative Office released a policy memorandum announcing the City’s new Policy for Review of Employment Candidates’ Criminal History (Ban the Box). Wishing to safely remove barriers that impede otherwise qualified individuals from obtaining employment with the City, New Orleans will no longer request criminal history information from job applicants until after they have been interviewed and found to be otherwise qualified for the position. In addition, the applicant will receive a copy of his or her background check and has an opportunity to comment on the record prior to a final employment decision. On October 18, 2018, the New Orleans City Council unanimously approved an ordinance to codify the 2014 policy and extend it to city contractors. The law requires city government employers (with few exceptions) to delay criminal history inquiries and background checks until after conducting applicant interviews and selecting up to three finalists for the position. At no time may an employer consider (i) arrests, (ii) sealed, dismissed, or expunged convictions, (iii) certain misdemeanor convictions, or (iv) non-felony juvenile offenses. Employer must conduct an individualized inquiry and provide an opportunity to respond with additional evidence before reaching a final decision. Employers must also provide clear notice, keep record information confidential, and maintain all documents for three years. The Chief Administrative Office is tasked with enforcing the ordinance and conducting an annual audit of City hiring practices. The ordinance also extends to government vendors, making it unlawful for the City to renew or begin a contract, grant, or cooperative endeavor agreement with any company that fails to both comply and certify compliance with the fair hiring practices described in the ordinance. New Orleans Resource New Orleans Ordinance No. 27889 (Oct. 18, 2018), available here. New Orleans Policy Memorandum No. 129 (Jan. 10, 2014), available here. 118 NELP | BAN THE BOX – FAIR CHANCE GUIDE 67 NEW CASTLE COUNTY, DE (WILMINGTON AREA) (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background check only after conditional offer of employment At the encouragement of the County Council Pro Tempore, New Castle County Executive Gordon signed an executive order removing criminal conviction history information from the County’s non-uniformed employment applications on January 28, 2014, saying, “When people have paid their debt to society, they are ready to work and become contributing members of the community once again.” New Castle County Resource New Castle County Executive Order Press Release (Feb. 14, 2014), available here. DANE COUNTY, WI (MADISON AREA) (ADMINISTRATIVE POLICY APPLIES TO COUNTY) When approached by Madison Organizing in Strength, Equity and Solidarity (MOSES) about banning the box for county job applications, Dane County Executive Joe Parisi needed no convincing. As a state legislator in 2009, Parisi had unsuccessfully pushed a bill to ban the box at the state level. After speaking with MOSES, Parisi removed questions of criminal history from the county application in February 2014 saying, “We don’t have to condone what they did to get in trouble, but I, personally, want people who’ve served their debt to society to get back into the workforce.” Dane County Resource Dane County Application, available here. Dane County Contact Carol Rubin, President MOSES carolrubin3@gmail.com INDIANAPOLIS, IN (ORDINANCE APPLIES TO CITY, COUNTY, LICENSING, AND VENDORS) • Policies apply to vendors/contractors doing business with the City • Incorporates EEOC criteria in individualized assessment On February 24, 2014, the Consolidated City of Indianapolis and Marion County (City) passed a fair-chance ordinance by 26-2 with the support of Republican Mayor Greg Ballard. The ordinance prohibits City or County agencies and vendors from inquiring into an applicant’s conviction history until after the first interview. If no interview is conducted, the employer is prohibited from making inquiries or gathering any information regarding the applicant’s criminal convictions. 119 NELP | BAN THE BOX – FAIR CHANCE GUIDE 68 Indianapolis Resource Indianapolis Ordinance (March 7, 2014), available here. Indianapolis Contacts Shoshanna Spector, Executive Director Coucilmember Vop Osili IndyCAN City of Indianapolis, City Council shoshanna@indycan.org voposili@gmail.com CHARLOTTE, NC (ADMINISTRATIVE POLICY APPLIES TO CITY) On February 28, 2014, Charlotte City Manager Ron Carlee announced that the City had “banned the box” for City applications. The Charlotte Human Resources director said she expected the number of applications for city jobs to increase as a result of the decision. Charlotte Resource Charlotte Human Resources Pre-Employment Background Check Policy, available here. Charlotte Contact Southern Coalition for Social Justice CHARLOTTESVILLE, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) In March 2014, the City removed the question about conviction history from the city job application. “This is another example of our commitment to being a City of Second Chances for ex-offenders who are searching for meaningful employment,” said the mayor. The City will continue to conduct background checks before making final employment offers. Charlottesville Resources Press Release (March 24, 2014), available here. City Council Minutes (April 7, 2014), available here. Charlottesville Contact Galloway Beck, Director beck@charlottesville.org LOUISVILLE, KY (ORDINANCE APPLIES TO CITY AND VENDORS) • Policies applies to vendors/contractors doing business with the city • Incorporates EEOC criteria in individualized assessment On March 13, 2014, the Louisville Metro Council unanimously passed a fair-chance ordinance. The bipartisan victory was praised by Mayor Fischer as “compassionate legislation.” The ordinance prohibits City agencies from inquiring into an applicant’s conviction history until after the applicant has been found “otherwise 120 NELP | BAN THE BOX – FAIR CHANCE GUIDE 69 qualified.” The ordinance states that the City prefers to do business with vendors who have adopted policies that are consistent with the City, and that consideration of vendors’ criminal history policies will be part of the performance criteria used by the City when awarding contracts. Louisville Resource Louisville Metro Council Ordinance (March 13, 2014), available here. Louisville Contact Robert Owens, Lead Organizer CLOUT clout@bellsouth.net ALEXANDRIA, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check after conditional offer of employment On March 19, 2014, the City Manager of Alexandria released a policy memorandum announcing the City’s new ban the box policy. Pursuant to the new policy, inquiries regarding prior criminal history will only be made after a conditional offer of employment has been issued. The City Manager notes that implementation of this policy is likely to increase equity in the recruitment process, broaden the pool of candidates seeking City employment, and provide Alexandrians with records a better chance at achieving gainful employment. Alexandria Resource Alexandria Policy Memorandum (March 19, 2014), available here. YOUNGSTOWN, OH (RESOLUTION APPLIES TO CITY) • Background check after conditional offer of employment On March 19, 2014, the city council voted unanimously to support a resolution to “ban the box” from city employment applications with the support of the mayor. Under the resolution, background checks are conducted only after the city is prepared to make an offer of employment. Youngstown Resource Youngstown Resolution (March 19, 2014), available here. Youngstown Contact Rebecca Soldan, Community Organizer Rebecca@mvorganizing.org Mahoning Valley Organizing Collaborative (MVOC) 121 NELP | BAN THE BOX – FAIR CHANCE GUIDE 70 EAST LANSING, MI (RESOLUTION APPLIES TO CITY) Passed unanimously by the City Council on April 15, 2014, East Lansing’s ban the box policy was introduced by Mayor Nathan Triplett. During discussion, Mayor Triplett noted his support of the policy was motivated by the need to “remove unnecessary bias from the pre-screening stage of the [hiring] process” and to make East Lansing a model employer in the state. East Lansing Resources East Lansing Resolution (April 15, 2014), available here. Recording of East Lansing City Council meeting, available here. East Lansing Contact Nathan Triplett, Mayor ntriplett@gmail.com ANN ARBOR, MI (RESOLUTION APPLIES TO CITY) • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment On May 5, 2014 the Ann Arbor City Council voted unanimously to ban the box for city employment. The new resolution declares the City’s policy of not barring employment based on conviction history unless the exclusion is job-related for the position in question and consistent with business necessity. If the City seeks to deny an applicant based on conviction history, the City must perform an individualized assessment that takes into account the factors recommended by the EEOC. Ann Arbor Resource Ann Arbor Resolution (May 5, 2014) available here. ROCHESTER, NY (ORDINANCE APPLIES TO CITY, VENDORS, AND PRIVATE EMPLOYERS) • Applies to public and private employers and vendors On May 20, 2014, the Rochester City Council unanimously passed an ordinance for fair employment screening. It was signed by the mayor two days later. Modeled on the Buffalo ordinance, all public and private employers within the City of Rochester are prohibited from inquiring into an applicant’s conviction history on an initial job application and must wait until after the first interview. Rochester Resource Rochester Ordinance (May 22, 2014), available here. 122 NELP | BAN THE BOX – FAIR CHANCE GUIDE 71 Rochester Contacts Valerie White-Whittick, Mentor Coordinator Mike Bleeg, Coordinator Judicial Process Commission Safer Monroe Area Reentry Team Jpc6@rocjpc.org mbleeg@rochester.rr.com Reyna Ramolete Hayashi, Workers’ Rights Attorney Empire Justice Center rhayashi@empirejustice.org GENESEE COUNTY, MI (FLINT AREA) (RESOLUTION APPLIES TO COUNTY) • Background check after conditional offer of employment Recognizing that asking about conviction history on job applicants may introduce bias into the hiring process, Genesee County Commissioners voted unanimously to “ban the box.” The new policy, which went into effect on June 1, 2014, requires the County to wait until a conditional offer of employment is to be made before conducting a background check and ensures that applicants be provided an opportunity to discuss the circumstances of his or her conviction history. Genesee County Resource Genesee County Resolution, available here. DANVILLE, VA (RESOLUTION APPLIES TO CITY) • Background check after conditional offer of employment • Incorporates EEOC criteria in an individualized assessment On June 3, 2014, the Danville Chapter of Virginia Organizing wrote a letter supporting a “ban the box” initiative in Danville. In response, Mayor Sherman Saunders signed a resolution that amended the city employment application to omit questions about conviction history. Under the new policy, background checks are conducted only after there has been a conditional offer of employment. The nature and age of the offense and the nature of the job are considered. Applicants are also given the opportunity to explain their conviction history. Danville Resource Danville Resolution (June 17, 2014), available here. Danville Contacts Marty Jackson Sara Weller, Director Danville Chapter, Virginia Organizing Department of Human Resources (434) 429-8109 sara.weller@danvilleva.gov PORTLAND, OR (ORDINANCE APPLIES TO CITY AND PRIVATE EMPLOYERS) • Policies apply to public and private employers in the city • Background check after conditional offer of employment 123 NELP | BAN THE BOX – FAIR CHANCE GUIDE 72 • Incorporates EEOC criteria in an individualized assessment • Complaint process In July 2014, the City of Portland removed from its employment application language informing applicants that they may be required to sign a criminal history statement. Portland expanded its policy on November 25, 2015, when the city council unanimously approved an ordinance requiring that any conviction history inquiry by private employers be delayed until a conditional offer is extended to the job applicant. Rescinding a conditional offer requires an employer to determine in good faith that a specific offense is job-related after performing an individualized assessment that considers (i) the nature of the offense, (ii) time elapsed, and (iii) the specific job sought by the applicant. The ordinance applies to private employers with at least six employees as well as city employers, with the exception of law enforcement and criminal justice positions. A separate procedure is used for certain “sensitive positions.” The city is contracting with the Oregon Bureau of Labor and Industries to enforce the new restrictions through a complaint process; the ordinance allows for civil penalties. The ordinance took effect on July 1, 2016, and the city has issued administrative rules further explaining the ordinance. Portland Resources Portland Press Release after administrative action (July 9, 2014), available here. Ordinance (Nov. 25, 2015), available here. Administrative Rules (2016), available here. Frequently Asked Questions (FAQs) from the Portland mayor’s office, available here. FULTON COUNTY, GA (ATLANTA AREA) (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background checks only required for some positions • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report On July 16, 2014, Fulton County issued a policy and procedure for fair criminal record screening. The policy explicitly incorporates the EEOC guidance. The Personnel Department is directed to remove questions about convictions from job application forms. The County is prohibited from inquiring into criminal history during the application process or before or during the first interview. An applicant need not disclose any arrests not leading to convictions, erased convictions, or juvenile adjudications. Background checks are limited to sensitive job positions. Applicants are notified of any adverse action and are provided a copy of the background check and notified of the conviction that is deemed job-related. Fulton County Resource Fair Criminal Record Screening Policy and Procedure (July 16, 2014), available here. 124 NELP | BAN THE BOX – FAIR CHANCE GUIDE 73 Fulton County Contact Charmaine Davis, Georgia State Director & Shannan Reaze, Organizer 9to5 and 9to5 Atlanta Charmaine@9to5.org; Shannan@9to5.org Marilynn Winn Women on the Rise marilynn@rjactioncenter.org CITY OF SPOKANE, WA (ORDINANCE APPLIES TO CITY & PRIVATE EMPLOYERS) On November27, 2017, the Spokane City Council passed a fair chance ordinance. Mayor David Condon declined to sign the ordinance, which was enacted without his signature or veto on December 14, 2017. The ordinance is divided into two parts: one applies to private employers (effective June 14, 2018) and the second applies to employment with the City (effective January 13, 2018). Sections 1 & 3 — Applies to Private Employers The ordinance bars private employers from stating that people with arrest or conviction records will be automatically precluded from consideration for employment. Employers may not inquire about a job applicant’s record until after an in-person, telephonic, or video interview (or a conditional offer of employment). An employer violation is categorized as a class 1 civil infraction, and carries civil penalties. Employers required (or expressly permitted) by law to conduct background checks are exempted, as are positions that have unsupervised access to children, vulnerable adults, or vulnerable persons. Section 2 — Applies to City Government Employers • Incorporates EEOC criteria in individualized assessment The City may consider a job applicant’s record only to the extent that it is directly related to the position sought and any potential risk to city residents, customers, or other employees. The ordinance exempts certain employers and types of employment, such as the police department and certain positions with the fire department. The ordinance also mandates that offers of employment for certain positions be made contingent on the completion of a conviction background check and permits such conditional offers for certain other positions. The Spokane ordinance supplements an earlier administrative policy applicable to city hiring. On July 31, 2014, Mayor Condon directed (by letter) the Human Resources Department to draft policies and procedures that would delay a background check inquiry until after determining that the applicant meets the minimum qualifications for the job. In accordance with that directive, Administrative Policy and Procedure 0620-15-65 took effect March 6, 2015. City of Spokane Resources City of Spokane Ordinance C35564 (Nov. 27, 2017), available here. 125 NELP | BAN THE BOX – FAIR CHANCE GUIDE 74 Letter from Mayor of Spokane (Dec. 18, 2017), available here. Spokane Administrative Policy & Procedure 0620-15-65 (2015), available here. Letter from Mayor of Spokane (July 31, 2014), available here. Spokane Contact Julie Schaffer, Attorney Center for Justice julie@cforjustice.org Layne Pavey, Organizer I Did the Time ididthetime@gmail.com FREDERICKSBURG, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment In 2014, the Human Resources Department and the City Attorney recommended a “ban the box” policy to the City Manager, who approved the new process. The City only conducts a background check after a conditional offer of employment has been made. If potentially negative information is identified, the City considers the age and nature of the offense in relation to the job position. If an applicant is denied, he or she will receive written notice that includes a description of the disqualifying information as well as the name of the company that ran the background check. The applicant has the opportunity to correct any misreported information. Fredericksburg Contact Robert F. Bell, Director Department of Human Resources (540) 372-1028 HARRISONBURG, VA (CITY COUNCIL DECISION APPLIES TO CITY) • Background check after conditional offer of employment • Right to appeal prior to adverse determination On August 26, 2014, the Harrisonburg City Council unanimously moved to remove criminal history questions from the city’s employment application. According to the city manager, the city maintains a policy of conducting criminal history background checks after a conditional offer of employment. If an offer of employment is rescinded based on the results of a background check, applicants are informed and given the opportunity to explain or correct any erroneous information. Harrisonburg Resource City Council Meeting Minutes (Aug. 26, 2014), available here (pages 5-6). 126 NELP | BAN THE BOX – FAIR CHANCE GUIDE 75 TUCSON, AZ (RESOLUTION APPLIES TO CITY) • Background checks only required for some positions • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment On August 27, 2014, the City of Tucson commited to removing the question about conviction history from the city job application. On March 17, 2015, a resolution was adopted by the mayor and city council directing the city to identify positions that require background checks and performing them after a contingent offer. The policy is directed to be consistent with the EEOC guidance. Tucson Resources Tucson Job Application, available here. Tucson Resolution No. 22373 (March 17, 2015), available here. Tucson Administrative Directive, available here. Tucson Contact Ellen Katz William E. Morris Institute for Justice eskatz@qwestoffice.net MADISON, WI (RESOLUTION APPLIES TO CITY; ORDINANCE APPLIES TO CITY CONTRACTORS) • Background check after conditional offer of employment • Complaint process (for city contractors, pursuant to ordinance) On September 2, 2014, the Common Council of the City of Madison adopted a resolution requiring the removal of criminal history inquiries from applications for city jobs (with limited exceptions). The resolution prohibits criminal background checks until after a conditional offer of employment and requires specific notice be provided to an applicant disqualified because of his/her background check. The resolution took effect on September 5, 2014. On November 25, 2015, the Common Council also adopted an ordinance extending ban the box to city contractors (with certain exceptions). It prohibits criminal history inquiries or background checks until after a conditional offer of employment. It requires contractors to post a city-provided notice informing job applicants about the ordinance’s requirements. Job applicants may file complaints with the City of Madison Department of Civil Rights. The ordinance allows for monetary penalties for violations. The ordinance applies to contracts worth over $25,000 awarded or renewed on January 1, 2016 or later. Madison Resources Resolution No. 14-00679 (Sept. 2, 2014), available here. Report to Common Council on impact of ban the box (July 16, 2014), available here. 127 NELP | BAN THE BOX – FAIR CHANCE GUIDE 76 Ordinance No. 15-00128 (Nov. 25, 2015), available here. Notice that contractors must prominently post, available here. FAIRFAX COUNTY, VA (WASHINGTON, D.C. METRO AREA) (APPLIES TO COUNTY) • Background check after conditional offer of employment Fairfax County does not inquire about criminal records on its job applications. Public safety jobs and “certain sensitive positions” are the exceptions. Background checks are conducted after a conditional offer. The goal of the policy change was to “increas[e] the chances that an applicant will be judged more holistically, reach the interview stage, and hopefully be more likely to be hired.” Fairfax County Resource Statement of Supervisor Catherine M. Hudgins (Sept. 23, 2014), available here. Fairfax County Contact Susan Woodruff, Director Fairfax County Department of Human Resources susan.woodruff@fairfaxcounty.gov ST. PETERSBURG, FL (ADMINISTRATIVE POLICY APPLIES TO CITY) On October 21, 2014, St. Petersburg Mayor Rick Kriseman announced his “City of Opportunity” initiatives related to fair hiring practices. Effective January 1, 2015, the city will remove the question asking city job applicants if they have a criminal record. St.Petersburg Contacts Pinellas County Ex-Offender Re-Entry Coalition (PERC) Faith in Florida ST. LOUIS, MO (ORDINANCE APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT) • Policy applies to most public and private employers in the city On January 10, 2020, the City of St. Louis Board of Aldermen unanimously passed Ordinance 71074. After 20 days without the mayor’s signature or veto following the board’s passage, the ordinance automatically became law. The ordinance prohibits both public and private employers with ten or more employees from inquiring about an applicant’s criminal history until after the employer determines the applicant is otherwise qualified for the position. The ordinance prohibits employers from basing a hiring or promotional decision on an applicant’s criminal history unless the employer can demonstrate consideration of all available information, including the frequency, recency, and severity of the offense(s), and that the offense is “reasonably related or bears upon” the duties and responsibilities of the position. Alleged violations may be submitted to the St. Louis Civil Rights Enforcement 128 NELP | BAN THE BOX – FAIR CHANCE GUIDE 77 Agency. The law directs the St. Louis Office of the License Collector to publicize the ordinance and enforce its penalties. The ordinance is effective January 1, 2021. Previously, as of March 2013, the City ceased automatically disqualifying job applicants with felony records. Then, in October 2014, the City removed all questions about conviction history from its job application, opting to instead screen later in the hiring process and only for certain sensitive positions. St. Louis Resources St. Louis Ordinance 71074, available here. St. Louis Press Release (Feb. 13, 2020), available here. St. Louis Mayoral Press Release (Oct. 14, 2014), available here. LANCASTER, PA (RESOLUTION APPLIES TO CITY) • Background check for finalists • Incorporates EEOC criteria in an individualized assessment By resolution, the City approved a new hiring policy effective October 1, 2014. Applicants will not be asked about a criminal record. Criminal background checks will be performed on finalists. If a finalist has a criminal record, human resources shall consider the nation of the position, accessibility to youth and the elderly, nature of the offense as related to the job duties, time passed, age of the applicant at the time of offense, and facts surrounding the offense. Lancaster Resources Lancaster City Council approval of resolution, available here. Lancaster Policy Memo, available here. ROANOKE, VA (ADMINISTRATIVE POLICY APPLIES TO CITY) On October 9, 2014, the City Manager indicated at a city council meeting that the question about a job applicant's conviction history would be removed from the initial application for most city positions. By January 2015, the city will have developed a new hiring process intended to provide people with records a fair opportunity at employment. Roanoke Resource Roanoke City Council Agenda (Oct. 9, 2014), available here. YONKERS, NY (ADMINISTRATIVE POLICY APPLIES TO CITY) In November 2014, Community Voices Heard worked with the Mayor’s office to remove the box asking an application to disclose his or her criminal history. Yonkers Resources Statement from Yonkers Mayor’s Office, available here. 129 NELP | BAN THE BOX – FAIR CHANCE GUIDE 78 Yonkers Job Application, available here. Yonkers Contact Juanita Lewis Community Voices Heard juanita@cvhaction.org ARLINGTON COUNTY, VA (ADMINISTRATIVE POLICY APPLIES TO COUNTY) In November 2014, the County eliminated questions about convictions from its employment application. “Taking this step reinforces our commitment to fair hiring practices,” said the director of the human resources department. Exceptions are for positions related to public safety. Conviction inquiries are delayed until the applicant has an interview. The County conducts background checks on all applicants before confirming employment. Applicants with records are given the opportunity to provide a written explanation of their record. The County explains, “Allowing these candidates to proceed further into the process creates opportunities that may otherwise have been lost, and provides candidates with a more level playing field during the application process.” Arlington County Resources Arlington County Press Release (Nov. 3, 2014), available here. Arlington County Contact Marcy Foster, Director Department of Human Resources mfoste@arlingtonva.us MONTGOMERY COUNTY, MD (WASHINGTON, D.C. METRO AREA) (ORDINANCE APPLIES TO PRIVATE EMPLOYERS AND COUNTY) • Applies to private employers and county • Provides copy of background check • Complaint process Consideration of the legislation entailed extensive analysis by the county. The county found that “when people with criminal histories are denied a fair chance at employment, the entire community pays the cost in the form of diminished public safety, increased government spending on law enforcement and social services, and reduced government revenue in the form of lost income and sales taxes.” The law covers employers in the county with 15 or more full-time employees. Employers may not conduct an investigation of an applicant’s conviction history until after the conclusion of the first interview. If the employer intends to rescind a conditional offer, the employer must provide the applicant with a copy of the background check and specify the disqualifying information and give the applicant 130 NELP | BAN THE BOX – FAIR CHANCE GUIDE 79 seven days to review the information. Applicants may file a complaint with the director of the human rights commission. County Executive Ike Leggett signed the legislation on November 10th and the law took effect on January 1, 2015. Montgomery County Resources Action Packet (Oct. 21, 2014), available here. Legislation (Oct. 28, 2014), available here. Press Release (Oct. 28, 2014), available here. Montgomery County Contact Neil Greenberger, Legislative Information Officer neil.greenberger@montgomerycountymd.gov KANSAS CITY AND WYANDOTTE COUNTY, KANSAS (“KCK”) (ORDINANCE APPLIES TO CITY) • Incorporates EEOC criteria in an individualized assessment On November 6, 2014, the Unified Government (UG) Board of Commissioners unanimously voted to pass an ordinance in “KCK” (Kansas City, Kansas) that will eliminate the field requesting disclosure of criminal convictions from the UG employment application. A petition for the change, with over 300 signers, was submitted in September 2014, stating: “We believe that just as all Citizens must pay taxes, all Citizens should have a fair chance at employment that is sustained by those same tax dollars.” KCK Resources KCK Agenda and Ordinance (Nov. 6, 2014), available here. WOODSTOCK, NY (ADMINISTRATIVE POLICY APPLIES TO CITY) On November 18, 2014, the Town Board voted unanimously to remove questions regarding criminal history from applications for emplyoment with the town. Woodstock Resources Woodstock Resolution, available here. PRINCE GEORGE’S COUNTY, MD (WASHINGTON D.C. METRO AREA) (ORDINANCE APPLIES TO PRIVATE EMPLOYERS AND COUNTY) • Applies to private employers and county • Incorporates EEOC criteria in an individualized assessment • Provides copy of background check report • Complaint process On November 19, 2014, the county council unanimously passed a bill that sets fair standards for screening criminal records during the hiring process. The bill is intended to “enhance the health and safety of the community by assisting 131 NELP | BAN THE BOX – FAIR CHANCE GUIDE 80 individuals with criminal records to lawfully provide for themselves and their families.” Under the legislation, an employer is not permitted to inquire about a job applicant’s arrest or conviction record until after a first job interview. In making an employment decision based on a person’s record, employers are only allowed to consider offenses that specifically demonstrate unfitness for the desired position. If an employer decides to rescind a job offer based on a record, they must notify the applicant of that decision, specify the information on which the decision is based, and provide a copy of the background check to the applicant. The county executive signed the bill on December 4, 2014. On April 14, 2015, the county council approved a resolution adopting rules and regulations further interpreting the ordinance. Prince George’s County Resource Prince George’s County Ordinance (Nov. 19, 2014), available here. Prince George’s County Resolution (Apr. 14, 2015), available here. ALLEGHENY COUNTY, PA (PITTSBURGH AREA) (APPLIES TO COUNTY) • Background checks only for some positions • Background checks after conditional offer of employment • Incorporates EEOC criteria in an individualized assessment On November 24, 2014, the county executive announced that the county will remove questions regarding criminal history from its employment application. For the positions that do require a background check, it will be conducted only after a conditional offer of employment has been made. A candidate’s criminal history will be evaluated on a case-by-case basis that includes consideration of the age of the offense and the nature of the position sought. The human resources director stated that “[the policy will] increase the diversity of our employees and ensure that we reach a greater audience in our efforts to attract the most qualified candidates.” Allegheny County Resource Allegheny County Press Release (Nov. 24, 2014), available here. COLUMBIA, MO (ORDINANCE APPLIES TO PRIVATE EMPLOYERS AND CITY) • Applies to private employers and city • Background checks after conditional offer of employment • Complaint process On December 1, 2014, the city council unanimously approved a fair-chance ordinance that prohibits employers from inquiring into an applicant’s criminal history until after a conditional offer of employment. Under the ordinance, employers are allowed to notify applicants in writing of specific offenses that would disqualify them from a position. Employers are also encouraged to consider the nature of the offense, the time since the offense, and any rehabilitation measures taken since the offense. The city’s Human Rights Commission wrote a letter of 132 NELP | BAN THE BOX – FAIR CHANCE GUIDE 81 support. The Mayor’s Task Force on Community Violence made the initial, formal recommendation to the council. Columbia Resource Columbia Ordinance and supporting documents (Dec. 1, 2014), available here. POMPANO BEACH, FL (ADMINISTRATIVE POLICY APPLIES TO CITY) • Incorporates EEOC criteria in an individualized assessment • Provides copy of background check report The City eliminated all questions regarding criminal records from its employment applications in December 2014. Criminal background checks are conducted after an initial interview. According to the Human Resources Director, applicants are notified of the reasons for denial and provided a copy of the background check report. Pompano Beach Resource Pompano Beach City Manager’s Memorandum (Dec. 1, 2014), available here. Pompano Beach Contact Vincent Marchione, Human Resources Analyst (954) 786-4627 vincent.marchione@copbfl.com ULSTER COUNTY, NY (EXECUTIVE ORDER APPLIES TO COUNTY) On December 16, 2014, the county executive signed the executive order to remove the conviction history question from the county’s job application. Instead, the personnel department will consider convictions only after the first interview. In the press release, the county executive commented that “if we are serious about fighting discrimination and bias, it is simply the right thing to do.” The order is effective on January 1, 2015. Ulster County Resources Ulster County Executive Order No. 2-2014 (Dec. 16, 2014), available here. Press Release (Dec. 16, 2014), available here. SYRACUSE, NY (ORDINANCE APPLIES TO CITY, LICENSURE, AND CONTRACTORS) • Applies to city employment and licensure; and applies to city contractors • Background checks after conditional offer of employment • Incorporates EEOC criteria in an individualized assessment On December 8, 2014 the city council resoundingly voted 8-1 to enact the ordinance. Under the ordinance, the city and its contractors shall not inquire into an applicant’s criminal history until an applicant is extended a conditional offer of employment. A conditional offer may be withdrawn if there is a direct relationship between a 133 NELP | BAN THE BOX – FAIR CHANCE GUIDE 82 conviction and the job position or if there is a finding of unreasonable risk. Prior to an adverse action, the applicant is provided with a copy of the criminal history report, which also identifies disqualifying information. The applicant has the opportunity to provide countervailing evidence prior to a final adverse action. As a component of enforcement, the city is required to audit the hiring practices of the city and its contractors. The ordinance is effective March 22, 2015. Syracuse Resources Syracuse Fair Employment and Licensure Ordinance (Dec. 8, 2014), available here. Center for Community Alternatives Press Release (Dec. 8, 2014), available here. Syracuse Contacts Alan Rosenthal and Patricia Worth Center for Community Alternatives arosenthal@communityalternatives.org and pwarth@communityalternatives.org ALLIANCE, OH (POLICY APPLIES TO CITY) • Background checks only required for some positions • Provides copy of background check report upon request The City eliminated all questions regarding criminal records from its employment applications around December 2014, but did not pass an ordinance requiring this change. According to the Safety Service Coordinator, criminal background checks are conducted for public safety positions and for positions where an individual would come into contact with money, once the finalists for the position are selected. The past crimes that are considered are those directly related to the position. Applicants are notified of the reasons for denial, and provided a copy of the background check report upon request. Alliance Resource Barbara J. Sferra, Safety Service Coordinator (330) 821-3110 WARREN, OH (RESOLUTION APPLIES TO CITY) • Background checks only required for some positions • Background checks after conditional offer of employment On January 14, 2015 the City Council passed a resolution to express support for the Ban the Box campaign, commend similar initiatives in other communities, and to encourage the Mayor of the City of Warren to submit a Ban the Box policy so that the City of Warren can implement the policy. The policy has not yet been implemented. Warren Resource Warren Resolution, available here. 134 NELP | BAN THE BOX – FAIR CHANCE GUIDE 83 Warren Contact David Daugherty, Personnel Supervisor 330-841-2608 ddaugherty@warren.org TALLAHASSEE, FL (ADMINISTRATIVE POLICY APPLIES TO CITY) Based on the City Manager’s recommendation, on January 28, 2015 the City Commission approved a measure to remove any questions regarding criminal history from applications for employment with the City. The City will conduct a background check after selecting the top candidate(s). The measure supplements the existing policy requiring the City to consider how the conviction relates to the job. Arrests are not considered. Tallahassee Resource Tallahassee City Commission Meeting Memorandum, available here. Tallahassee Contact Ellen Blair, Human Resources Director (850) 891-8538 MACON-BIBB COUNTY, GA (ORDINANCE APPLIES TO COUNTY) • Provides copy of background check report On February 17, 2015, county commissioners voted 6-3 to remove any questions from the county application that ask about criminal records. The policy applies to applications for professional licenses as well. Background checks are still required for all applicants for employment, but if an applicant is rejected because of her criminal record, the County must provide the applicant with a copy of the record used and indicate the portions of the record that resulted in disqualifcation. Macon-Bibb County Resource Macon-Bibb County Commissioners’ Ordinance, available here. Macon-Bibb County Contacts Opie D. Bowen; Assistant County Attorney Marilynn Winn (478) 751-7671 Women on the Rise obowen@maconbibb.usq marilynn@rjactioncenter.org Charmaine Davis, Georgia State Director & Shannan Reaze, Organizer 9to5 and 9to5 Atlanta Charmaine@9to5.org; Shannan@9to5.org READING, PA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background checks after conditional offer of employment 135 NELP | BAN THE BOX – FAIR CHANCE GUIDE 84 As of March 9, 2015, applications for employment with the City no longer include any questions relating to an applicant’s criminal history. The City still conducts background checks on all applicants, but only after a conditional offer is made. ALBANY, GA (RESOLUTION APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment Albany’s City Commissioners passed a resolution on March 24, 2015 that directs the Human Resources Department to remove from the City’s employment application any questions about an applicant’s criminal record. The City still conducts background checks on all applicants for City employment once they are selected for an interview. According to the Human Resources Director, the City follows the EEOC guidance and does not generally consider an arrest record. If an application is denied because of an applicant’s criminal record, the applicant is notified of the reason for denial and provided an opportunity to dispute inaccuracies and/or present evidence of rehabilitation. Albany Resource Albany City Commissioners’ Resolution available here. ALLENTOWN, PA (ORDINANCE APPLIES TO CITY) • Background checks after conditional offer of employment On April 1, 2015, Allentown’s City Council voted unanimously to eliminate the criminal history inquiry from applications for City employment. The City will not conduct a background check until after making a conditional offer of employment. Applications for a position as a police officer, firefighter, or 911 operator will still include the criminal conviction inquiry. SAVANNAH, GA (RESOLUTION & POLICY APPLY TO CITY) On May 14, 2015, the Savannah City Council adopted a resolution supporting ban the box for city hiring. Via the resolution, which was largely symbolic, the council affirmed its existing administrative policy of not allowing conviction records to act as an automatic disqualifier of applicants for employment with the city. According to the city’s then-director of human resources, the city removed conviction inquiries from its employment application in 2007 as part of a move to an online application system. Background checks are delayed until an applicant is a “tentative selection to fill a position.” Several relevancy factors are then considered when deciding whether to hire an applicant with a record. One of those factors, however, is whether the applicant provided full and truthful information about the conviction in a timely manner, which can, unfortunately, act as a candor trap and undercut the purpose of banning the box. Savannah Resources Savannah City Council Meeting Minutes (May 14, 2015), available here. 136 NELP | BAN THE BOX – FAIR CHANCE GUIDE 85 Memorandum from City Human Resources Director (Feb. 27, 2015), available here. ORLANDO, FL (POLICY APPLIES TO CITY) • Background checks after conditional offer of employment • Incorporates EEOC criteria in individualized assessment On May 15, 2015, the City of Orlando announced a new policy that eliminates the criminal history inquiry from applications for City employment. The City does not conduct a background check until making a conditional offer of employment. For applicants to the police and fire department and to summer seasonal employees who work with children and people with disabilities, the criminal history inquiry will remain on the application. Applicants who are rejected due to criminal history are provided notification of the reason for the denial. Orlando Contacts John Kinloch, Employment Supervisor (407) 246-2067 Desmond Meade Mykal Tairu State Director, Live Free Campaign, Program Coordinator Faith in Florida Vincentian Reentry Organizing Project dmeade@picoflorida.org mykal@svdporlando.org COLUMBUS, GA (ORDINANCE APPLIES TO CITY) • Background check after hiring process is complete • Incorporates EEOC criteria in individualized assessment On May 29, 2015, the mayor of Columbus signed an ordinance removing the criminal history inquiry from applications to non-public safety Department positions. The City does not conduct a background check until a candidate has been selected. Candidates may request a copy of the record. If an application is denied because of an applicant’s criminal record, the applicant is notified of the reason for denial and, on a case-by-case basis, may be provided an opportunity to dispute inaccuracies. Columbus Resource Columbus Ordinance (May 29, 2015), available here Columbus Administrative Policy (May 12, 2015), available here DAYTONA BEACH, FL (POLICY APPLIES TO CITY) On June 1, 2015, the City announced in a press conference that it would enact a ban- the-box policy, effective on July 1st. A job applicant with the city will not disclose conviction information until the City has expressed a “desire to hire the individual.” Daytona Beach Resource 137 NELP | BAN THE BOX – FAIR CHANCE GUIDE 86 Daytona Beach Implementation of Fair Chance Policy and Procedure, available here Daytona Beach Contacts Desmond Meade Mykal Tairu State Director, Live Free Campaign Program Coordinator Faith in Florida Vincentian Reentry Organizing Project dmeade@picoflorida.org mykal@svdporlando.org TACOMA, WA (RESOLUTION APPLIES TO CITY) • Background check after hiring process is complete • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report On June 30, 2015, the Tacoma City Council voted unanimously to remove any inquiry into conviction history from its job applications for city applications. The City will continue to run background checks on all employees, but will consider whether the offense relates to the position and will only consider conviction history after extending a conditional offer. The inquiry will remain for applications for police officers and positions that work directly with children. Tacoma Resource Tacoma Resolution, available here Tacoma Background and Reference Check Guidelines, available here Tacoma Contact Mary McDougal Human Resources Director 253-502-8781 mmcdougal@cityoftacoma.org WICHITA, KS (POLICY APPLIES TO CITY) • Background check after hiring process is complete • Incorporates EEOC criteria in individualized assessment As of July 9, 2015, the City of Wichita no longer inquires about criminal history for city jobs. With the exception of law enforcement positions, which still requires a background check before an offer is made, Wichita now considers conviction history only after a conditional offer has been made, and considers factors like the nature and severity of the offense, how much time has passed, and whether the offense is related to the job. Wichita Contact Chris Bezruki Human Resources Director 316-268-4531 138 NELP | BAN THE BOX – FAIR CHANCE GUIDE 87 cbezruki@wichita.gov TOPEKA, KS (ADMINISTRATIVE DECISION APPLIES TO CITY) • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment As of July 2015, applications for employment with the City of Topeka no longer include questions about criminal records. The City conducts background checks for all positions after extending a conditional offer of employment, with some exceptions. The City also considers the time elapsed since the conviction, the nature of the conviction, and how it relates to the duties of the job. If the conditional offer is withdrawn, the City first notifies the applicant and provides the applicant with a copy of the record. The applicant has the opportunity to correct inaccuracies and explain the circumstances of a conviction before a final decision is made. NEWARK, OH (RESOLUTION APPLIES TO CITY) On July 20, 2015, the Newark City Council unanimously passed a resolution removing the conviction history inquiry from its applications. The Newark Think Tank on Poverty led the initiative to pass the resolution, with the help of Councilmember Jeremy Blake. NEWBURGH, NY (RESOLUTION APPLIES TO CITY) The Newburgh City Council unanimously approved a resolution removing a question about convictions from city applications on August 10, 2015, with exceptions. The city can still ask applicants about their conviction history during the interview and will conduct background checks thereafter. Newburgh Resource City Council Resolution No. 199-2015, available here GLENDALE, AZ (ADMINISTRATIVE DECISION APPLIES TO CITY) • Background check after conditional offer of employment In September 2015, the City of Glendale removed the question about criminal records from the City’s application for employment. The City only conducts a background check after extending a conditional offer of employment, and limits the criminal record inquiry to convictions that occurred within the last seven years. KINGSTON, NY (RESOLUTION APPLIES TO CITY) In September, 2015, the Kingston City Council passed a resolution to remove questions related to criminal convictions and charges from City employment applications. City employers can still ask questions regarding criminal records during job interviews and conduct background checks on applicants. Kingston Resource 139 NELP | BAN THE BOX – FAIR CHANCE GUIDE 88 City Council Resolution No. 186 of 2015, available here (page 7). MIAMI-DADE COUNTY, FL (ORDINANCE APPLIES TO COUNTY) • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment On October 6, 2015, the Miami-Dade Board of County Commissioners passed an ordinance regarding county employment. The county may not conduct a background check until after an applicant is selected as a finalist and receives a conditional offer of employment. The ordinance also prohibits the consideration of arrests that did not result in conviction and sealed, expunged, and pardoned convictions. It further mandates that the county consider how a conviction relates to the job and how much time has elapsed since the applicant was convicted, and requires that the applicant be given five days to respond to a potential withdrawal of the conditional offer before a final decision is made. Miami-Dade Resource Miami-Dade County Ordinance, available here. PRINCE WILLIAM COUNTY, VA (RESOLUTION APPLIES TO COUNTY) On October 13, 2015, the Prince William Board of County Supervisors adopted a resolution directing the county executive to remove conviction questions from initial county employment applications. Applicants are now asked about their criminal conviction history only after they have completed the interview process (with exceptions for certain law enforcement positions). The policy took effect on November 1, 2015. Prince William Resource Resolution 15-672 (Oct. 13, 2015), available here. NASHVILLE, TN (ADMINISTRATIVE POLICY APPLIES TO CITY) On November 10, 2015, the Metro Civil Service Commission voted unanimously to remove questions regarding criminal history from the application for employment with the City. The policy took effect by January 1, 2016 and included exceptions for police and fire departments. PIMA COUNTY, AZ (TUSCON AREA) (RESOLUTION APPLIES TO COUNTY) On November 10, 2015, the Pima County Board of Supervisors passed a resolution that removes the inquiry about an applicant’s criminal record from the application for County employment. The County will still conduct background checks later in the hiring process, and the resolution will not apply to certain professions. Pima Resource Pima County Press Release, available here. 140 NELP | BAN THE BOX – FAIR CHANCE GUIDE 89 BATON ROUGE, LA (RESOLUTION APPLIES TO CITY) On November 10, 2015, the East Baton Rouge Parish Metro Council eliminated questions regarding criminal history from the application for employment with the City. The resolution does not apply to certain positions. DALLAS COUNTY, TX (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Incorporates EEOC criteria in individualized assessment • Right to appeal denial of employment The Dallas County Commissioners voted unanimously on November 17, 2015 on a policy for the County. The County will delay requesting criminal history until later in the hiring process, consider how an offense relates to the position sought, the time elapsed since conviction, and evidence of rehabilitation in deciding whether a conviction is disqualifying. The policy also provides that applicants should be given the opportunity to review the background check and challenge its relevance and accuracy. Dallas Resource Dallas Guidelines for Hiring Applicants with Records, available here. Dallas Contact Josh Gravens Organize Justice josh@organizejustice.org GAINESVILLE, FL (APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment City commissioners voted on November 19, 2015 to remove the criminal history inquiry from the city’s employment application. Human Resources reviews the criminal history information received, and when negative information is obtained, makes individual assessments, considering the age of the offense and its relevance to the job in making hiring decisions. Gainesville Resource Gainesville Legislative Information, available here. CHATTANOOGA, TN (RESOLUTION & ORDINANCE APPLY TO CITY) On December 1, 2015, the Chattanooga City Council adopted a resolution to prohibit city departments from inquiring into a job applicant’s conviction history on “any preliminary employment application documents.” City employers may only inquire into and consider an applicant’s conviction record as part of a normal background check after an application is submitted. 141 NELP | BAN THE BOX – FAIR CHANCE GUIDE 90 On December 15, 2015, the city council approved Ordinance No. 13007 to amend the Chattanooga City Charter to remove the requirement that all employees of the city be eligible to vote in Tennessee and replace it with a Tennessee residency requirement. Voters of Chattanooga overwhelmingly approved Ordinance No. 13007 on November 8, 2016, and the ordinance takes effect 60 days later (January 7, 2017). Chattanooga Resource Chattanooga City Council Resolution, available here. Chattanooga Ordinance No. 13007, available here. Chattanooga Contact Nicole Gwyn, Clerk to the City Council nsgwyn@chattanooga.gov FORT MYERS, FL (RESOLUTION APPLIES TO CITY) On December 7, 2015, the Fort Myers City Council unanimously adopted Resolution No. 2015-61, which removes questions about felony convictions from city job applications and requires that the review of conviction records later in the hiring process must include consideration of “legitimate business necessity.” City hiring managers were to receive training within 90 days after the resolution was adopted. The resolution made exceptions for police and fire department applications. Fort Myers Resources City Council Meeting Minutes (Dec. 7, 2015), available here. Fort Myers Resolution No. 2015-61, available here. ITHACA, NY (ADMINISTRATIVE POLICY APPILES TO CITY) On December 23, 2015, the City of Ithaca announced that it will be implementing a ban the box policy for public employers. Ithaca’s Director of Human Resources stated to the media, “[T]his community cannot afford to pass up talented, capable people in search of a second chance. At the very least, banning the box may eliminate unconscious bias or the perception of it. We are excited to model, through this initiative, what the city believes and practices.” Ithaca Resource City of Ithaca News Release, available here. BLACKSBURG, VA (RESOLUTION APPLIES TO CITY) • Background check only for finalists for positions • Incorporates EEOC criteria in individualized assessment On January 19, 2016, the Blacksburg Town Council directed Town staff to remove questions about criminal history from applications for employment with the Town. 142 NELP | BAN THE BOX – FAIR CHANCE GUIDE 91 In a press release, the Town Attorney stated that under the new policy, background checks will be conducted only after the best candidate for a position is identified, and that any consideration of criminal history at that stage should take into account the details of the conviction along with the job requirements. Blacksburg Resource Blacksburg Town Press Release, available here. ASHEVILLE, NC (RESOLUTION APPLIES TO CITY) The Asheville City Council passed a resolution on January 26, 2016 expressing its commitment to the Ban the Box movement and its support for the City amending its employment application so as not to require disclosure of an applicant’s criminal record during the initial job application process, except for certain sensitive positions. Asheville Resource Asheville City Council Resolution 16-29, available here (page 5). MONTGOMERY COUNTY, VA (RESOLUTION APPLIES TO COUNTY) On January 26, 2016, the Montgomery County Board of Supervisors passed a unanimous resolution to ban the box for County jobs, removing a question about conviction history from the County employment application. Montgomery County Resource Montgomery County Board of Supervisors Resolution R-FY-15-76, available here. DUTCHESS COUNTY, NY (ADMINISTRATIE POLICY APPLIES TO COUNTY) Effective February 1, 2016, questions regarding criminal convictions, dishonorable military discharges, and firings from previous jobs will be removed from all Dutchess County exams, recruitments and employment applications. County Executive Marcus Molinaro issued the ban the box policy as part of a broader initiative to advance diversity which also included appointing a new Equal Employment/Human Rights Officer, reconstituting the County’s Human Rights Commission, and launching a workforce diversity taskforce to develop recommendations to diversify the pool of applicants for County jobs. Dutchess County Resource Dutchess County News Release, available here. BIRMINGHAM, AL (EXECUTIVE ORDER APPLIES TO CITY) • Right to contest content of record On February 4, 2016, Birmingham Mayor William A. Bell, Sr., signed an executive order directing the City’s Human Resources Department to implement hiring policies for City jobs intended to “encourage the full participation of motivated and 143 NELP | BAN THE BOX – FAIR CHANCE GUIDE 92 qualified persons with criminal histories in the workforce.” The Mayor’s hiring policy goals include prohibiting the use of a criminal record as an automatic bar to employment, removing questions related to criminal history from the initial stages of the application process, and providing applicants the opportunity to discuss inaccuracies or contest the content of their record and to provide any information that demonstrates rehabilitation. Birmingham Resources Birmingham Executive Order, available here. U.S Department of Justice Press Release, available here. STAUNTON, VA (CITY COUNCIL DECISION APPLIES TO CITY) On February 25, 2016, the Staunton City Council decided to remove the criminal history question from the city’s employment application. All interviewed candidates instead complete a criminal conviction disclosure form after interviewing. Staunton Resource Staunton City Council Minutes (Feb. 25, 2016), available here. CHEROKEE COUNTY, GA (RESOLUTION APPLIES TO COUNTY) • Incorporates EEOC criteria in individualized assessment • Right to appeal prior to adverse determination On March 1, 2016, the Cherokee County Board of Supervisors unanimously passed a resolution removing questions or checkboxes about conviction records from County employment applications, and delaying disclosure of records and background checks until after an interview has been conducted. Any candidate with a conviction will be given the opportunity to demonstrate that the conviction should not be disqualifying for the position. Before making a decision based on conviction records, the employer must consider the nature and gravity of the offense, the time passed since the offense, and the nature of the job. Cherokee County Resource Cherokee County Resolution, available here. BETHLEHEM, PA (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check only for finalists for positions • Incorporates EEOC criteria in individualized assessment On March 1, 2016, Bethlehem Mayor Robert Donchez directed the city’s human resources personnel and department heads to delay inquiries about criminal history until the final stage of the hiring process (with exceptions for certain law enforcement positions). After the city determines that an individual is qualified and a finalist for a position, a criminal history background check will be performed. If the individual has a record, human resources will coordinate with the solicitor’s 144 NELP | BAN THE BOX – FAIR CHANCE GUIDE 93 office to conduct an individual assessment according to EEOC guidelines. Upon receiving a conditional offer of employment, all applicants are further required to provide the city with a Pennsylvania Child Abuse History Clearance, Federal Criminal History Background Check, and a Pennsylvania State Police Clearance. The policy took effect on March 14, 2016. Bethlehem Resource Mayor’s Office Memorandum, available here. MECKLENBURG COUNTY, NC (RESOLUTION APPLIES TO COUNTY) On March 16, 2016, the Mecklenburg County Board of Commissioners passed a motion directing the county manager to modify the County’s application for employment by removing the question about criminal convictions. Mecklenburg County Resource BOCC Meeting Minutes (Mar. 16, 2016), available here (page 18-21). PHOENIX, AZ (ADMINISTRATIVE REGULATION APPLIES TO CITY) • Background check only for finalists for positions • Incorporates EEOC criteria in individualized assessment • Right to appeal prior to adverse determination Effective April 18, 2016, the City of Phoenix moved the process of disclosure of prior convictions from the employment application stage to the finalist interview stage for most city positions. The hiring authority reviews any disclosed convictions and works with the department’s human resources supervisor to evaluate applicants’ records in accordance with the EEOC guidance. Only convictions within the past seven years may be considered. If the hiring authority finds a conviction to be disqualifying, the applicant shall be provided a pre-adverse action disclosure letter and given 10 calendar days to dispute the record or provide any mitigating information with the background check vendor. Phoenix Resource Phoenix Administrative Regulation 2.81 Revised, available here. WAKE COUNTY, NC (ORDINANCE APPLIES TO COUNTY) • Background check only for finalists for positions • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report • Right to appeal denial of employment On April 18, 2016 the Board of Supervisors approved an ordinance to require that the initial application form not inquire about prior convictions. Background checks will be conducted only after the applicant has been recommended for hire. An applicant’s record cannot be used as a basis for denial unless a conviction is job- 145 NELP | BAN THE BOX – FAIR CHANCE GUIDE 94 related as determined by an individualized assessment incorporating EEOC guidelines. Before taking an adverse action, hiring departments must obtain concurrence from human resources and provide the applicant with a pre-adverse action disclosure form, a copy of the background report, and notice of the applicant’s right to dispute the information in the report. Wake County Resources Wake County Ordinance, available here. Wake County Human Resources Policy, available here. BUNCOMBE COUNTY, NC (RESOLUTION APPLIES TO COUNTY) On April 19, 2016, the Buncombe County Board of Commissioners adopted a resolution to remove criminal history questions from the county’s initial job application. Buncombe County Resources Board of Commissioners Meeting Minutes (April 19, 2016), available here. Buncombe County Resolution (April 19, 2016), available here. SARASOTA, FL (ADMINISTRATIVE POLICY APPLIES TO CITY) • Background check only for finalists for positions • Incorporates EEOC criteria Effective May 1, 2016, the City of Sarasota delayed when in the hiring process criminal history information is disclosed and reviewed. Near the final phase of the selection process, applicants’ records are reviewed and considered along with the nature and age of the offense as well as the nature of the job sought. Sarasota Resource City of Sarasota Press Release (May 13, 2016), available here. JOHNSON COUNTY, KS (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background check after conditional offer of employment On May 19, 2016, the Johnson County Board of County Commissioners approved a motion endorsing the county manager’s decision to remove criminal history questions from the beginning of the application process (except for certain positions related to public safety). The applicant’s background check is conducted after an offer of employment is extended. Johnson County Resources BOCC Meeting Transcript (May 12, 2016), available here (page 11). BOCC Meeting Transcript (May 19, 2016), available here (page 29). BROWARD COUNTY, FL (ORDINANCE APPLIES TO COUNTY) 146 NELP | BAN THE BOX – FAIR CHANCE GUIDE 95 • Background check only for finalists for positions • Provides copy of background check report • Right to appeal prior to adverse determination On June 14, 2016, the Broward County Board of County Commissioners approved an ordinance delaying inquiries about county job applicants’ criminal histories until the final phase of the hiring process. After reviewing a finalist’s criminal history, the county determines whether any convictions or pending charges are job-related and whether business necessity prevents hiring the individual. If the county declines to offer employment because of a finalist’s criminal history, the county must provide the individual with a copy of the record and an explanation of its assessment of that record. Within five business days,the applicant may contest the accuracy of the reported information or provide evidence of mitigating circumstances or rehabilitation. The ordinance took effect on June 16, 2016, and the county administrator was allowed an additional 90 days to implement it. Broward County Resource Ordinance No. 2016-18 (June 15, 2016), available here. PULASKI COUNTY, AR (ORDINANCE APPLIES TO COUNTY) • Background check after conditional offer of employment • Provides copy of background check report • Right to appeal prior to adverse determination • Incorporates EEOC criteria in individualized assessment On June 28, 2016, the Pulaski County Quorum Court unanimously passed an ordinance removing criminal history questions from the county’s initial employment applications. Such inquiries are delayed until after a conditional offer of employment. The county employer is required to conduct an individualized assessment and consider the nature and gravity of the offense, the time passed since the offense, and the nature of the job. If the county rescinds an offer employment based on a finalist’s criminal history, the county must provide the applicant with an adverse-action letter that specifies the deadline by which the individual may contest the accuracy of the reported information or provide evidence of rehabilitation. The background check report will be provided upon request. The ordinance took effect within 60 days after adopted. Pulaski County Resources County Ordinance 16-I-29A (June 28, 2016), available here. County Quorum Court Meeting Minutes (June 28, 2016), available here. HENRY COUNTY, VA (ADMINISTRATIVE ACTION APPLIES TO COUNTY) Effective July 1, 2016, Henry County removed the criminal history inquiry that had previously appeared on its initial employment application. Following a request from the Martinsville/Henry County Chapter of Virginia Organizing, the change to the 147 NELP | BAN THE BOX – FAIR CHANCE GUIDE 96 employment application was announced and the new application distributed at a meeting of county managers. Henry County Resource Employment application with question omitted, available here. Henry County Contact Nik Belanger, Southside Organizer Virginia Organizing nik.belanger@virginia-organizing.org NEW HANOVER COUNTY, NC (POLICY APPLIES TO COUNTY) • Background check only for finalist • Right to appeal prior to adverse determination • Incorporates EEOC criteria in individualized assessment On July 1, 2016, the New Hanover city manager issued an administrative memorandum titled, “Ban the Box - Ensuring Equal Hiring Opportunity to All Qualified Individuals.” Pursuant to the policy, the County will remove all conviction inquiries from job applications; the County will conduct a background check after the applicant is determined to be otherwise qualified and the hiring department recommends offering the job to the applicant. The policy bars consideration of expunged records. Before rejecting an applicant based on his or her record, the County will consider a number of factors, including the nature and job-relatedness of the conviction, time passed, and efforts at rehabilitation. When the County intends to deny an applicant a job because of his or her record, the County will first provide the applicant with an initial determination notice and an opportunity to respond with evidence of mitigation or rehabilitation. The policy applies to all county departments and agencies, with the exception of the Sheriff’s Office and the Register of Deeds Office, both of which may but need not comply with the policy. The policy took effect immediately. New Hanover County Resource New Hanover County Administrative Memorandum No. 16-001 (July 1, 2016), available here. TOMPKINS COUNTY, NY (RESOLUTION APPLIES TO COUNTY) On July 5, 2016, the Tompkins County Legislature unanimously adopted a resolution of support for the commissioner of personnel to implement procedures to remove criminal conviction questions from the county’s employment application. Criminal conviction disclosures and subsequent inquiries are now delayed until later in the hiring process. The personnel department considers whether an individual’s conviction is related to the position. 148 NELP | BAN THE BOX – FAIR CHANCE GUIDE 97 Tompkins County Resource County Legislature Meeting Highlights (July 5, 2016), available here. DENVER, CO (EXECUTIVE ORDER APPLIES TO CITY) • Background check after conditional offer of employment • Incorporates EEOC criteria in individualized assessment On July 11, 2016, Mayor Michael B. Hancock announced that the City and County of Denver would ban the box from job applications, beginning in August 2016. On July 25, 2016, the mayor amended Executive Order No. 135 “The Use of Background Checks in Hiring and Employment Decisions,” adding Section 3.1.1, which prohibits conviction history inquiries until the applicant has been extended a conditional offer of employment (with certain exceptions). Even before the July 2016 update, Sections 3.1.7 and 3.1.8 of Executive Order No. 135 already limited agency consideration of arrests and required agencies to consider (i) the nature of the conviction, (ii) existence of a “strong correlation” between the conviction and job sought, (iii) the number of convictions, (iv) the recentness of convictions, and (v) any evidence of rehabilitation. Denver Resource Executive Order No. 135 (July 25, 2016), available here. Denver Contact Diane M. Vertovec, Marketing & Communications Manager Denver Office of Human Resources diane.vertovec@denvergov.org TEMPE, AZ (ADMINISTRATIVE ACTION APPLIES TO CITY) On August 29, 2016, the Tempe Merit System Board approved changes to the City of Tempe Personnel Rules that removed criminal history questions from city job applications. Instead, applicants are asked about their conviction histories after completing the first interview and being selected as a finalist for the position. At that point, finalists must complete a “criminal background questionnaire,” and later, successful applicants will undergo fingerprint background checks as a condition of accepting employment. The Personnel Rules were revised to incorporate these changes on September 22, 2016. Tempe Resources Tempe Merit System Board Meeting Minutes (Aug. 29, 2016), available here. City of Tempe Personnel Rules (Sept. 22, 2016), available here. Tempe Contact Ellen Katz, Director William E. Morris Institute for Justice 149 NELP | BAN THE BOX – FAIR CHANCE GUIDE 98 eskatz@qwestoffice.net (602) 252-3432 SACRAMENTO, CA (ORDINANCE APPLIES TO CITY CONTRACTORS) On September 6, 2016, the Sacramento City Council adopted a ban-the-box ordinance applicable to city contractors with at least 20 employees. Covered city contractors are prohibited from inquiring into a job applicant’s conviction history until determining that he or she meets the minimum qualifications for the position sought. A violation of that prohibition would constitute a material breach of the city contract and authorize the city to terminate the contract. The ordinance makes exceptions for (i) positions for which the employer is required to conduct a background check, and (ii) positions that will not involve work on a city contract. The ordinance applies to contracts of at least $100,000 awarded after January 1, 2017. Sacramento Resources City Ordinance No. 2016-0036 (Sept. 6, 2016), available here. City Council Meeting Minutes (Sept. 6, 2016), available here. MILWAUKEE, WI (RESOLUTION APPLIES TO CITY) On October 11, 2016, the Common Council of the City of Milwaukee voted 13-to-2 to adopt a resolution requiring the Department of Employee Relations not to ask about an applicant’s criminal history on the initial city employment application. Instead, background checks are only to be conducted when the applicant is placed on an “employee eligibility list.” Although city officials already delayed conviction inquiries pursuant to a practice instituted by the mayor several years previously, the Common Council resolution renders this change permanent. The resolution expressly applies to all civilian positions within the police and fire departments to the fullest extent permitted by law. The Common Council resolution further encourages all Milwaukee employers to ban the box. Milwaukee Resource Resolution No. 120663 (Oct. 11, 2016), available here. Common Council Meeting Minutes (Oct. 11, 2016), available here (pages 11-12). Milwaukee Contact Astar N. Herndon, State Director 9to5 astar@9to5.org (414) 274-0925 JACKSON COUNTY, MO (ADMINISTRATIVE ACTION APPLIES TO COUNTY) 150 NELP | BAN THE BOX – FAIR CHANCE GUIDE 99 On November 6, 2016, Jackson County Executive Frank White, Jr. promulgated Executive Order 16-16, which prohibits criminal history inquiries from appearing on initial applications for county jobs. Jackson County Resource Executive Order 16-16 (Nov. 7, 2016), available here. SAN ANTONIO, TX (ADMINISTRATIVE ACTION APPLIES TO CITY) On December 7, 2016, the San Antonio City Council Governance Committee supported a staff recommendation to remove all questions about criminal history from the civilian job application. (Councilman Rey Saldaña had previously urged the adoption of a fair chance hiring ordinance.) City Manager Sheryl Sculley then issued a memorandum indicating that inquiries into criminal history would be delayed until after a conditional job offer. After receiving the background check results, human resources staff conduct an individualized assessment, considering (i) job relatedness of a conviction, (ii) offense level, (iii) time elapsed, (iv) mitigating circumstances, and (v) rehabilitation evidence. Human resources staff consult with the City Attorney’s Office when questions arise regarding job relatedness. The policy applies to the civilian job application, which excludes the fire and police departments. San Antonio Resource City Manager Fair Chance Hiring Memorandum (Dec. 7, 2016), available here. San Antonio Contact Lori Steward, Human Resources Director City of San Antonio lori.steward@sanantonio.gov (210) 207-1465 LOS ANGELES, CA (ORDINANCE APPLIES TO CITY & PRIVATE EMPLOYERS) • Background check after conditional offer of employment • Provides copy of background check report • Right to appeal prior to adverse determination • Incorporates EEOC criteria in individualized assessment On December 9, 2016, Mayor Eric Garcetti approved an ordinance delaying public and private employer inquiries into job applicants’ conviction histories. The ordinance applies broadly to businesses in the city that employ at least 10 people, with certain exceptions. Employers may not ask about an applicant’s record until a conditional offer of employment has been extended. After learning of an applicant’s record, employers must consider factors including (i) age of the offense, (ii) nature of the offense, and (iii) specific duties of the job sought. Written notice must be 151 NELP | BAN THE BOX – FAIR CHANCE GUIDE 100 provided to applicants. The ordinance provides for a private right of action for aggrieved job applicants. Also on December 9, 2016, Mayor Garcetti approved an ordinance governing city contractors’ consideration of criminal history information during their hiring processes. The ordinance prohibits city contractors (and subcontractors) from inquiring into a job applicant’s record until after extending that applicant a conditional offer of employment. Before revoking any such offer, the contractor must conduct a written assessment, explaining the job-relatedness of the applicant’s record and examining the factors set forth in the 2012 EEOC Guidance. When taking adverse action on the basis of the applicant’s record, the contractor must provide a written notice, including a copy of that written assessment and any supporting materials, such as the applicant’s background check report. The employer may not fill the position for five business days, during which the applicant may submit additional information. Violation of the ordinance constitutes a material breach of the city contract, and the ordinance also provides for monetary penalties. The Los Angeles Department of Public Works, Bureau of Contract Administration is tasked with enforcing the ordinances and collecting civil monetary penalties (effective July 1, 2017). Both ordinances took effect on January 22, 2017. Los Angeles Resources City of Los Angeles Ordinance No. 184652 (Dec. 9, 2016), available here. City of Los Angeles Ordinance No. 184653 (Dec. 9, 2016), available here. Rules and Regulations Implementing Los Angeles Ordinance, available here. Los Angeles Contacts A New Way of Life LA Voice (323) 563-3575 (213) 384-7404 AUGUSTA, GA (ADMINISTRATIVE POLICY APPLIES TO CITY/COUNTY) • Incorporates EEOC criteria in individualized assessment On December 20, 2016, the Augusta Commission voted in favor of banning the box from Augusta job applications but sent the policy to the Administrative Services Committee to determine the details. On January 17, 2017, the Augusta Commission voted to approve the policy revisions that were approved by the committee on January 10, 2017. The policy bans the box from Augusta job applications, except applications for positions requiring that the worker not have a record. Pursuant to the policy, a job applicant is not asked about his or her record until he or she is selected as a finalist for the position sought. After the applicant’s record is received, the human resources department conducts an individualized assessment, considering the age, nature, and job-relatedness of the offense(s) and affording the applicant an opportunity to explain any mitigating circumstances. If human 152 NELP | BAN THE BOX – FAIR CHANCE GUIDE 101 resources recommends rejecting an applicant because of his/her record, that determination is reviewed by the Augusta EEOC/Compliance Department (and the Augusta Administrator, as needed). Note: Augusta-Richmond County is a consolidated city-county government. Augusta Resources Augusta Fair Chance Policy (dated Jan. 5, 2017), available here. Augusta Commission Meeting Minutes (Jan. 17, 2017), available here. Augusta Commission Meeting Minues (Dec. 20, 2016), available here. YORK COUNTY, SC (RESOLUTION APPLIES TO COUNTY) • Background check after conditional offer of employment On January 17, 2017, the York County Council unanimously approved a fair chance resolution applicable to hiring for county jobs. Although confusingly structured, the resolution appears to delay record-related inquiries until after a conditional offer has been extended to the applicant. York County Resource York County Commission Resolution (Jan. 17, 2017), available here. ALBANY COUNTY, NY (LOCAL LAW APPLIES TO COUNTY) • Background check after conditional offer of employment • Provides copy of background check report • Right to appeal prior to adverse determination The Albany County Legislature approved the Albany County Fair Chance Act in a 32 to 3 vote on February 13, 2017. The act prohibits the County of Albany from inquiring into a job applicant’s conviction record until after a conditional offer of employment is extended, and then, only if the employer makes a good faith determination that a background check is warranted or required for the position sought. Furthermore, the county may not inquire about an applicant’s arrest history at any time during the application process. Albany County Resource Albany County Fair Chance Act, available here. NORTH LAS VEGAS, NV (ADMINISTRATIVE ACTION APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment On October 14, 2016, Mayor Pro Tem Isaac Barron announced that the City of North Las Vegas would ban the box. City Manager Qiong X. Liu approved the city’s ban-the- box administrative policy (dated February 9, 2017). Conviction inquiries are delayed until the interview phase of the application process. When considering an applicant’s record, city personnel conduct an individualized assessment, taking into 153 NELP | BAN THE BOX – FAIR CHANCE GUIDE 102 account such factors as the nature and age of the offense, nature of the job sought, as well as mitigating circumstances, evidence of rehabilitation. North Las Vegas Resource North Las Vegas Ban the Box Policy (Feb. 9, 2017), available here. SPOKANE COUNTY, WA (RESOLUTION APPLIES TO COUNTY) • Background check after the applicant is found to be otherwise qualified • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report • Right to appeal prior to adverse determination On October 27, 2017, the Board of County Commissioners voted to approve a new hiring policy that removes questions about past convictions from county job applications and delays background checks until the applicant is determined to be otherwise qualified for the position, which typically means that the applicant meets the minimum requirements for the position. The County limits background checks to convictions from within the past ten years, pursuant to state regulations (Washington Administrative Code 162-12-140). The applicant has ten business days to respond to a proposed adverse action before that action becomes final; an applicant may respond by challenging the accuracy of the record or providing evidence of rehabilitation or mitigating circumstances. Spokane County Resource Spokane County Resolution and Background Check Policy (Oct. 24, 2017), available here. WINSTON-SALEM, NC (RESOLUTION APPLIES TO CITY) On November 20, 2017, the Winston-Salem City Council unanimously approved a resolution reaffirming support for removing conviction inquiries from city job applications. The resolution also urges private employers to follow suit and ban the box from their job applications. Council Member Derwin L. Montgomery further requested information about city vendor policies on ban the box and expressed interest in revisiting that topic in the future. Winston-Salem Resources City of Winston-Salem Resolution No. 17-925 (Nov. 20, 2017), available here. MARICOPA COUNTY, AZ (ADMINISTRATIVE POLICY APPLIES TO COUNTY) • Background check after conditional offer of employment On December 13, 2017, the Maricopa County Board of Supervisors unanimously voted to approve a new human resources (HR) policy (HR2435) that delays conviction record inquiries and background checks. With certain exceptions, the policy requires the county to postpone such inquiries until after the applicant 154 NELP | BAN THE BOX – FAIR CHANCE GUIDE 103 accepts a conditional offer of employment. The applicant may not begin work until after a background check, however. If the county decides not to hire the person after a background check, the HR department will satisfy all Fair Credit Reporting Act (FCRA) requirements (which typically means that the employer must provide written notice and a copy of the background check report to the applicant). The policy took effect January 1, 2018. Maricopa County Resource Maricopa County Human Resources Policy HR2435 (Dec. 13, 2017), available here. BEAVER COUNTY, PA (RESOLUTION APPLIES TO COUNTY) On January 25, 2018, the Beaver County Board of Commissioners passed Resolution 012518-30, which banned the box from applications for county jobs. Except for “public-safety-sensitive positions,” the County will not inquire about a job applicant’s record until after he or she is interviewed for the position. Furthermore, an applicant with a conviction record will have an opportunity to provide clarifying information, which the County must consider before making a hiring decision. The policy took effect immediately. Beaver County Resource Beaver County Resolution No. 012518-30 (Jan. 25, 2018), available here. WESTCHESTER COUNTY, NY (LAW APPLIES TO PRIVATE EMPLOYERS) On April 9, 2018, Westchester County Executive George Latimer signed an executive order to prohibit questions about conviction history during the initial application process. The policy took effect immediately. On December 3, 2018, the Westchester County Board of Legislators passed a law prohibiting public and private employers (with the exception of law enforcement agencies) from asking about arrest or conviction history on an initial job application. The law requires that, before taking any adverse employment action based on an applicant’s record, the employer must analyze the record and the factors listed in Article 23-A of New York State Correction Law. The applicant may request, and the employer must then provide, a written statement setting forth the reasons for the denial, pursuant to Article 23-A, Section 754. The Westchester County Human Rights Commission is tasked with accepting complaints and enforcing the law. County Executive Latimer signed the law on December 4, 2018, and it took effect 90 days later (March 4, 2019). Westchester County Resources Westchester Local Law No. 10913-2018 (as amended) (Dec. 4, 2018), available here. Executive Order No. 5 of 2018 (Apr. 6, 2018), available here. Westchester County Press Release (Apr. 9, 2018), available here. 155 NELP | BAN THE BOX – FAIR CHANCE GUIDE 104 FORSYTH COUNTY, NC (RESOLUTION APPLIES TO COUNTY) On April 12, 2018, the Forsyth County Board of Commissioners unanimously approved a resolution to remove conviction inquiries from most county job applications. The short resolution did not include many details, and instead “authorize[d] the creation of a Fair Chance Employment Policy to ensure that the hiring practices of the County do not unfairly deny employment to people with criminal conviction records which are not job related.” That policy will be developed by the county human resources department and added to the county employee handbook. Forsyth County Resource Forsyth County Resolution (Apr. 12, 2018), available here. NORTHAMPTON COUNTY, PA (EXECUTIVE ORDER APPLIES TO COUNTY) On April 27, 2018, County Executive Lamont McClure signed an executive order to ban the box from applications for county jobs. The policy allows for exceptions for “certain positions,” such as law enforcement and positions involving contact with vulnerable populations. The policy took effect April 27, 2018. Northampton County Resources Executive Order 18-54 (Apr. 27, 2018), available here. Northampton County Press Release (Apr. 30, 2018), available here. WILMINGTON, NC (ORDINANCE APPLIES TO CITY) On May 1, 2018, the Wilmington City Council unanimously approved a resolution and ordinance to both limit the positions for which background checks are conducted and delay such checks until later in the hiring process. The resolution to ban the box sets forth the city’s policy of conducting background checks only when “necessary to prevent conduct which might be detrimental to the health, safety, or welfare of the public, or to protect the city from conduct which might be detrimental to the city and its property.” For those positions for which background checks are required, the resolution states that no inquiry or check will occur until after a decision to extend a conditional offer to the applicant. If a background check reveals a conviction that potentially endangers public health, safety, or welfare or that of the city, the human resources department will notify the applicant and allow the submission of evidence of inaccuracies in the record, mitigating circumstances, or rehabilitation. The ordinance describes for which positions a background check is required as well as which past convictions would prevent a person from holding those positions. (NELP recommends eliminating all such automatic, blanket bans from the law and replacing them with individualized, case-by-case assessments.) The ordinance provides that background checks for the positions described would be performed on all “final applicants” for those positions. The ordinance provides that a person 156 NELP | BAN THE BOX – FAIR CHANCE GUIDE 105 with a record that includes one of the listed, related offenses will be given an opportunity to provide evidence of inaccuracy, rehabilitation, and mitigating circumstances. Thereafter, the city manager may in his/her discretion, allow an applicant to continue in the hiring process despite a misdemeanor or a felony conviction where the last date of incarceration/probation/parole occurred over seven years previously. Wilmington Resource Wilmington Resolution to Ban the Box (May 1, 2018), available here. Wilmington Ordinance adding Sec. 8.5 (May 1, 2018), available here. Wilmington Code of Ordinances, Sec. 8, Art. I, available here. Wilmington City Council May 1, 2018 Meeting Minutes, available here. LINN COUNTY, IA (RESOLUTION APPLIES TO COUNTY) On May 16, 2018, the Linn County Board of Supervisors adopted a resolution on “Inclusive Hiring Practices Concerning People with a Prior Criminal Conviction.” to. The resolution removes conviction history inquiries from the county’s initial employment application and provides that the county must wait until after selecting an applicant for an interview before asking about his or her conviction record or conducting a background check. The resolution further provides for the individualized consideration of conviction history and urges those making hiring decisions to do so without regard for conviction history whenever possible. Linn County Resource Linn County Resolution No. 2018-5-73 (May 16, 2018), available here. YORK, PA (ORDINANCE APPLIES TO CITY) On May 22, 2018, York Mayor Michael Ray Helfrich signed an ordinance to codify the city’s fair chance hiring policy. The York City Council unanimously approved the ordinance on May 16, 2018. The policy removes conviction inquiries from the city employment application and requires the city to consider the public interest in ensuring access to employment for people with records when making hiring decisions. The ordinance also encourages private businesses to follow suit by removing conviction inquiries from their job applications. The ordinance took effect twenty days after the mayor signed it (i.e., June 11, 2018). York Resources City of York Ordinance No. 5 of 2018 (May 22, 2018), available here. Article 165 of the York City Codified Ordinances, available here. JOHNSON COUNTY, IA (RESOLUTION APPLIES TO COUNTY) On June 14, 2018, the Johnson County Board of Supervisors approved a resolution to ban the box from county job applications. The resolution committed the County to remove conviction inquiries from initial employment applications for county jobs, 157 NELP | BAN THE BOX – FAIR CHANCE GUIDE 106 with the exception of positions requiring a full background check because of the nature of the work (e.g., law enforcement or positions working with vulnerable populations). The resolution further committed to requiring that an applicant is selected for an interview before the County asks about conviction history or conducts a required background check. Moreover, the resolution encouraged selecting applicants without consideration of past convictions, when possible, as well as considering individualized circumstances when evaluating an applicant’s record. Johnson County Resources Johnson County Resolution 06-14-18-05 (June 14, 2018), available here. Johnson County Board of Supervisors June 14, 2018 Meeting Minutes, available here. SOUTH FULTON, GA (ORDINANCE APPLIES TO CITY AND CONTRACTORS) • Applies to public employers and vendors On January 22, 2019, the South Fulton City Council voted (6-1-0) to approve an ordinance banning the box for city hiring and hiring by city contractors. The ordinance, proposed by Mayor Pro Tem Mark Baker, requires City employers to delay inquiries into criminal history until the applicant is being interviewed or the City determines the applicant to be otherwise qualified for employment. The ordinance requires all City application forms to state that, “in accordance with the City Code, criminal convictions are not a bar to City employment, provided, that the prior criminal activity is not directly related to the position being sought. South Fulton Resource South Fulton Ordinance 2019-004 (Jan. 22, 2019), available here. NEW BERN, NC (RESOLUTION APPLIES TO CITY) • Incorporates EEOC criteria in individualized assessment • Background check only after conditional offer of employment • Background checks only required for some positions On March 26, 2019, the City of New Bern Board of Aldermen unanimously approved a resolution to remove criminal record inquiries from city job applications. With some limited exceptions, such inquiries will be delayed until after a conditional offer of employment. Further, the city manager is tasked with ensuring that employment background checks are not conducted except for sensitive positions for which such a check is necessary to protect public safety. When considering an applicant’s conviction record, the city will consider job-relatedness and time since the offense. If the city intends to deny employment because of a job-related conviction record, the city will notify the applicant and allow the individual to submit evidence of rehabilitation, mitigating circumstances, or inaccuracy of the record. The new background check policy took effect April 1, 2019. 158 NELP | BAN THE BOX – FAIR CHANCE GUIDE 107 New Bern Resources New Bern Board of Aldermen Resolution (Mar. 6 ,2019), available here. New Bern Administrative Order 2.3 (Apr. 1, 2019), available here. New Bern Board of Aldermen Meeting Minutes (Mar. 26 ,2019), available here. RICHLAND COUNTY, SC (RESOLUTION APPLIES TO COUNTY) On June 4, 2019, the Richland County Council adopted a resolution supporting the removal of criminal record inquiries from initial job applications for employment with the County. Such inquiries and background checks are delayed until an applicant is selected for an interview. The resolution includes a vague exception for jobs that “require a full background check due to the nature of the work.” Richland County Resources Richland County Resolution (June 4, 2019), available here. Richland County Council Minutes (June 4, 2019), available here. COLUMBIA, SC (ORDINANCE APPLIES TO CITY) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report On August 6, 2019, with the support of Mayor Steven Benjamin, the Columbia City Council adopted a comprehensive fair-chance hiring ordinance applicable to city employment. For sensitive positions requiring a background check, job postings must state that only job-related convictions will be considered and will not automatically disqualify an applicant. The ordinance prohibits conviction history inquiries until after the employer extends a written conditional job offer to the applicant. At no point may a city employer consider records of arrest not followed by a conviction, expunged convictions, or infractions and certain misdemeanors. An employer may not disqualify an applicant because of a conviction record unless the offense is job-related. Before rescinding a conditional offer, employers must provide written notice, a copy of the conviction history report, and ten business days for the applicant to respond. The employer must then engage in an individualized assessment, considering mitigating information and EEOC-recommended factors, to determine whether the candidate is presently fit for the position. To ensure compliance, city employers must retain relevant documents and record data on the number of applicants and hires with(out) records. In addition to banning the box, the ordinance also prohibits inquiries about wage history during the hiring process. While the ordinance encourages city vendors to also both types of inquiries, it does not mandate them. Moreover, the ordinance authorizes but does not require city agencies to consider whether applicant businesses have adopted such practices when selecting vendors. The ordinance took effect immediately. 159 NELP | BAN THE BOX – FAIR CHANCE GUIDE 108 Columbia Resources Columbia Ordinance No. 2019-022 (Aug. 6, 2019), available here. Statement of organizer Lester Young (Aug. 8, 2019), available here. WATERLOO, IA (ORDINANCE APPLIES TO CITY & PRIVATE EMPLOYERS) • Background check only after conditional offer of employment • Applies to public and private employers and vendors On November 4, 2019, the Waterloo City Council adopted Ordinance No. 5522 to govern the unfair use of criminal records in hiring decisions within the city. (That ordinance clarified and replaced a prior version (No. 5515), adopted on October 7, 2019.) The ordinance prohibits both private and city employers, regardless of size, from inquiring about criminal history on a job application. Employers with at least fifteen employees must comply with further requirements. The ordinance requires such employers to delay record-related inquiries until after extending a conditional job offer to the applicant. Such employers are also prohibited from considering expunged or pardoned convictions, denying a job solely based on arrests or pending charges not yet resulting in conviction, and denying a job based on a conviction record without a legitimate business reason (e.g., the offense has a “direct and substantial bearing” on ability to perform the job, taking into account EEOC- recommended relevancy factors). An organization representing business interests filed suit to block Waterloo’s ordinance, arguing that it is preempted by Iowa state law. On April 4, 2020, the district court upheld Waterloo’s ordinance. An appeal is pending. The ordinance took effect July 1, 2020. Waterloo Resources Waterloo Ordinance No. 5522 (Nov. 4, 2019), available here. SUFFOLK COUNTY, NY (LONG ISLAND) (LOCAL LAW APPLIES TO COUNTY & PRIVATE EMPLOYERS) On April 16, 2020, the Suffolk County executive and legislature adopted Local Law No. 14-2020, which prohibits County and private employers from asking about conviction records on job applications or from conducting background checks or inquiring about job applicants’ conviction records before an initial interview, if any. The law references and incorporates existing New York State law (Corrections Law Article 23-A, summarized above) governing employer consideration of the job- relatedness of any conviction record. The law includes several exceptions, including for any positions with legal requirements against hiring people with certain conviction records; police, fire, or emergency services employers; public or private schools; and any providers of direct care to children, elderly, or disabled individuals. Enforcement of the law is through the courts, which may impose injunctive relief, 160 NELP | BAN THE BOX – FAIR CHANCE GUIDE 109 damages, and attorneys’ fees in response to claims brought by individuals. In addition to commencing an action in court, individuals may file complaints against employers with the Suffolk County Human Rights Commission, which can then seek civil penalties and damages in court. The ordinance took effect August 25, 2020. Suffolk County Resources Suffolk County Resolution No. 221-2020 Adopting Local Law No. 14-2020 (Apr. 16, 2020), available here. AIKEN, SC (RESOLUTION APPLIES TO CITY) • Background check only after conditional offer of employment • Incorporates EEOC criteria in individualized assessment • Provides copy of background check report Following a request from the Aiken NAACP and JustLeadershipUSA, the Aiken City Council voted unanimously to approve a resolution supporting changes to job applications for employment with the Aiken city government. Specifically, the resolution supports removing criminal history inquiries from job applications and delaying conviction record inquiries until after a conditional offer of employment. The resolution states that the city will consider only convictions and only if they are determined to be job-related after considering certain relatedness factors, including time since the offense and the duties of the job. If the city considers a particular record disqualifying, it will notify the applicant in writing, provide a copy of the record, allow time to respond, and conduct an individualized assessment. The resolution also supports retaining data on the number of applicants with records who were conditionally offered jobs and whether they were hired or the offer was rescinded. The resolution was approved on July 13, 2020. Aiken Resources Aiken City Council Resolution (July 13, 2020), available here. Aiken City Council Meeting Minutes (July 13, 2020), available here. TAMARAC, FL (ORDINANCE APPLIES TO CITY) On October 28, 2020, the Tamarac City Commission unanimously adopted an ordinance prohibiting the City from inquiring into a job applicant’s criminal history or conducting a background check until determining that the applicant is “otherwise qualified” for the position, meaning that the applicant satisfies the basic criteria for the position as set out in the job description. The City also committed not to “advertise employment openings in a way that excludes people with criminal records from applying.” A job applicant may allege a violation by filing a written complaint with the City Manager’s Office. The ordinance applies neither to volunteers nor to positions with law enforcement, that work with certain populations, or for which a federal or state law permits or requires a background check. The ordinance does not apply to city contractors but encouraged such 161 NELP | BAN THE BOX – FAIR CHANCE GUIDE 110 contractors to adopt fair chance hiring policies and permits the City to consider contractor hiring policies among the criteria used to evaluate potential or existing contractors. Tamarac Resources Tamarac Ordinance No. 2020-014 (Oct. 28, 2020), available here. City of Tamarac Human Resources Memo (Oct. 5, 2020), available here. DESOTO, TX (ORDINANCE APPLIES TO CITY & PRIVATE EMPLOYERS) • Applies to public and private employers On April 6, 2021, the DeSoto City Council voted 6-1 to adopt an ordinance prohibiting any criminal history inquiry on an initial job application. The ordinance applies to city hiring and private businesses that employ at least fifteen workers. Individuals may file complaints alleging violations with the Office of the City Manager within 60 days of the violation. Following an administrative hearing, the municipal court judge (acting as an administrative hearing officer) may issue a warning for a first violation or impose civil penalties of up to $500 for subsequent violations. The chair of the local chamber of commerce and multiple local pastors voiced support for the ordinance at the city council meeting. The ordinance takes effect 60 days after approval and becomes fully effective on January 1, 2022. DeSoto Resources DeSoto Ordinance No. 2231-21 (Apr. 6, 2021), available here. 162 NELP | BAN THE BOX – FAIR CHANCE GUIDE 111 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public ALABAMA 1. Birmingham X A 2. ARIZONA (state policy) X 3. Glendale X X 4. Maricopa County X X 5. Phoenix X X X N, C, A 6. Pima County X 7. Tempe X X 8. Tucson X X X X A ARKANSAS 9. Pulaski County X X X N, A 10. CALIFORNIA (state law) X X X X N, C, A 11. Alameda County X 12. Berkeley X X X 13. Carson X 14. Compton X X X 15. East Palo Alto X 16. Los Angeles X X X X X N, C, A 17. Oakland X X X X N, C, A 18. Pasadena X 19. Richmond X X X 20. Sacramento X 21. San Francisco X1 X1 X X X N, C, A 22. Santa Clara County X 23. COLORADO (state law) X X X X A 24. Denver X X X 25. CONNECTICUT (state law) X X X A 26. Bridgeport X X N, A 27. Hartford X X X X X N, A 28. New Haven X X X X N, C, A 29. Norwich X X 30. DELAWARE (state law) X X 31. New Castle County X 32. Wilmington X X 33. District of Columbia X X X X X A FLORIDA 34. Broward County X X X N, C, A 163 NELP | BAN THE BOX – FAIR CHANCE GUIDE 112 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 35. Clearwater X X 36. Daytona Beach X X 37. Gainesville X X 38. Fort Myers X 39. Jacksonville X X X N, A 40. Miami-Dade County X X X N 41. Orlando X X X N, C 42. Pompano Beach X N, C 43. Sarasota X X X 44. St. Petersburg X 45. Tamarac X A 46. Tampa X X N 47. Tallahassee X X 48. GEORGIA (state policy) X 49. Albany X X N, A 50. Atlanta X N, C 51. Augusta X X X 52. Cherokee County X X A 53. Columbus X X X N, A 54. Fulton County X X X N, C 55. Macon-Bibb County X N, C 56. Savannah X X 57. South Fulton X X 58. HAWAI’I (state law) X X X X X A 59. ILLINOIS (state law) X X X X A 60. Chicago X X X X A 61. INDIANA (state policy) X 62. Indianapolis X X X IOWA 63. Johnson County X X 64. Linn County X X 65. Waterloo X X X X X A 66. KANSAS (state policy) X 67. Johnson County X X 68. Kansas City X X 69. Wichita X X X N,C, A 70. Topeka X X X N, C, A 164 NELP | BAN THE BOX – FAIR CHANCE GUIDE 113 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 71. KENTUCKY (state policy) X 72. Louisville X X X 73. LOUISIANA (state law) X X11 C11 74. Baton Rouge X 75. New Orleans X X X X X N, C 76. MAINE (state law) X X X A 77. MARYLAND (state law) X X X A 78. Baltimore X X X X X X A 79. Montgomery County X X X N, C, A 80. Prince George’s County X X X X N, C, A 81. MASSACHUSETTS (state law) X X X N, C, A 82. Boston X X X N, A 83. Cambridge X X X N, C, A 84. Worcester X X X X N, C, A 85. MICHIGAN (state policy) X 86. Ann Arbor X X X 87. Detroit X X 88. East Lansing X 89. Genesee County X X 90. Kalamazoo X X C 91. Muskegon County X 92. MINNESOTA (state law) X X X X2 N2, A 93. Minneapolis X X X 94. St. Paul X X X 95. MISSOURI (state policy) X 96. Columbia X X X X X A 97. Jackson County X 98. Kansas City X X X X X 99. St. Louis X X X 100. NEBRASKA (state law) X 101. NEVADA (state law) X X N, A 102. North Las Vegas X X 103. NEW HAMPSHIRE (state law) X 165 NELP | BAN THE BOX – FAIR CHANCE GUIDE 114 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 104. NEW JERSEY (state law) X X X A 105. Atlantic City3 X3 X3 X3 X3 N3 106. Newark3 X3 X3 X3 X3 X3 X3 N3, C3 107. NEW MEXICO (state law) X X X X4 N4, A5 108. NEW YORK (state policy) X 109. Albany County X X X N, C, A 110. Buffalo X X X X A 111. Dutchess County X 112. Ithaca X 113. Kingston X 114. Westchester County X X X X A 115. Newburgh X 116. New York City X X X X X N, C, A 117. Rochester X X X X A 118. Suffolk County X X X A 119. Syracuse X X X X N, C, A 120. Tompkins County X 121. Ulster County X 122. Woodstock X 123. Yonkers X 124. NORTH CAROLINA (state policy) X X N, C 125. Asheville X 126. Buncombe County X 127. Carrboro X X 128. Charlotte X 129. Cumberland County X X 130. Durham City X X X 131. Durham County X X X N, C, A 132. Forsyth County X 133. Mecklenburg County X 134. New Bern X X X X N 135. New Hanover County X X X N, A 136. Spring Lake X X N 137. Wake County X X X N, C, A 138. Wilmington X X X N, A 166 NELP | BAN THE BOX – FAIR CHANCE GUIDE 115 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 139. Winston-Salem X 140. NORTH DAKOTA (state law) X 141. OHIO (state law) X X6 142. Alliance X X N, C 143. Akron X X A 144. Canton X X X 145. Cincinnati X X N, C, A 146. Cleveland X 147. Cuyahoga County X X X 148. Dayton X X N 149. Franklin County X X X N 150. Hamilton County X 151. Lucas County X 152. Massillon X X 153. Newark X 154. Stark County X 155. Summit County X X X 156. Warren X X X N 157. Youngstown X X 158. OKLAHOMA (state policy) X 159. OREGON (state law) X X X A 160. Multnomah County X X 161. Portland X X X X X N, A 162. PENNSYLVANIA (state policy) X 163. Allegheny County X X X X 164. Allentown X X 165. Beaver County X 166. Bethlehem X X X 167. Lancaster X X X 168. Northampton County X 169. Philadelphia X X X X X N, C, A 170. Pittsburgh X X X N 171. Reading X X 172. York X 173. RHODE ISLAND (state law) X X X A 174. Providence X 167 NELP | BAN THE BOX – FAIR CHANCE GUIDE 116 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 175. SOUTH CAROLINA 176. Aiken X X X N, C 177. Columbia X X X X N, C 178. Richland County X 179. York County X X 180. TENNESSEE (state law) X X A 181. Chattanooga X 182. Hamilton County X X 183. Memphis X X N, C, A 184. Nashville X TEXAS 185. Austin X X X X X X N, A 186. Dallas County X X A 187. DeSoto X X X A 188. San Antonio X X X 189. Travis County X X X X 190. UTAH (state law) X 191. VERMONT (state law) X X X A 192. VIRGINIA (state law) X X 193. Alexandria X X 194. Arlington County X 195. Blacksburg X X X 196. Charlottesville X 197. Danville X X X 198. Fairfax County X X 199. Fredericksburg X X X N 200. Harrisonburg X X N, A 201. Henry County X 202. Montgomery County X 203. Newport News X X 204. Norfolk X X 205. Petersburg X 206. Portsmouth X 207. Prince William County X 208. Richmond X 209. Roanoke X 210. Staunton X 168 NELP | BAN THE BOX – FAIR CHANCE GUIDE 117 Location Employers: Background checks only for some positions Background check only after conditional offer or finalists selected EEOC criteria Notice of denial (N); Copy of record (C); Appeal or complaint (A) Private Vendors Public 211. Virginia Beach X X X 212. WASHINGTON (state law) X X X A 213. Seattle X X X X N, C, A 214. Spokane X X X X7 215. Spokane County X X N, C, A 216. Tacoma X X X N, C 217. Pierce County X X N 218. WISCONSIN (state law) X 219. Dane County X 220. Madison X8 X8 X N9, A10 221. Milwaukee X 222. Milwaukee County X 1 San Francisco Fair Chance Ordinance applies to private employers, not the City and County. The City and County has a separate policy. 2 Applies only to public employers. 3 Superseded by state law. 4 Applies only to public employers. 5 Applies only to private employers. 6 Applies only to state agencies. 7 Applies only to city employers. 8 Madison ordinance applies to vendors, and separate resolution applies to public city hiring. 9 The Madison resolution requires public entities provide notice to disqualified applicants. 10 The Madison ordinance allows job applicants to file complaints with the city alleging contractor violations. 11 The laws of Louisiana and New York do not ban the box for private employers, but state law requires private employers to consider certain EEOC-like criteria. Louisiana also requires private employers to provide an individual with a copy of their record. 169 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-1999,Version:1 AGENDA CAPTION Receive a report, hold a discussion, and give staff direction regarding the Bonnie Brae Street Project Update. [Estimated Presentation/Discussion Time: 30 minutes] City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™170 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Capital Projects/Engineering DCM: David Gaines, Deputy City Manager DATE: November 1, 2022 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the Bonnie Brae Street Project Update. BACKGROUND On August 16, 2022 Council Member Davis requested information regarding the feasibility of replacing the planned signalized intersection of Bonnie Brae and Windsor with a roundabout similar to the roundabout installed at the intersection of Bonnie Brae and Scripture. An email was provided showing that the request was originally made to previous staff in 2019. The Bonnie Brae Phase 6 project is a street improvement project that was a part of the 2014 General Bond Election and is one in the City’s Capital Improvement Program. The original limits of this project were to extend from University to Windsor. Since that time, the segment from Windsor to US-77 was added into the 2019 General Bond Election. This segment also became eligible to receive RTR (Regional Toll Revenue) funding. RPS was tasked with a completing a conceptual schematic for a connection between US-77 and Loop 288 on Bonnie Brae. Bonnie Brae Phase 7 was taken over by TxDOT to provide the connection between US-77 and Loop 288. Staff worked with the Engineer of Record (RPS) to examine the potential impact of the proposed roundabout on the following items: - Project Cost - Project Schedule - Traffic - Pedestrian Travel - Vehicular Travel RECOMMENDATION After thorough review, staff recommends that the current plan of improving the intersection of Bonnie Brae and Windsor with a signalized intersection to be constructed with the Bonnie Brae PH 6 project. ESTIMATED SCHEDULE OF PROJECT Construction is anticipated to begin in Q1 of 2023. OPERATIONAL IMPACT City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 171 Replacing the signalized intersection of Bonnie Brae and Windsor will result in a 36 month delay to construction. FISCAL INFORMATION The current estimated construction cost is $23 million. Replacing the signalized intersection of Bonnie Brae and Windsor will increase the construction costs by a minimum of $2 million for a revised construction cost of $25 million. EXHIBITS Exhibit 1 – Agenda Information Sheet Exhibit 2 – Presentation Respectfully submitted: Becky Diviney, Director/City Engineer, Capital Projects Prepared by: Kyle Pedigo, Program Manager, Capital Projects 172 Bonnie Brae Corridor Update City Council Work Session 11/1/2022 ID 22-1999 Project/Program Manager: Kyle Pedigo 1 173 BONNIE BRAE RECONSTRUCTION OVERVIEW 2 Phase 3 –Roselawn to I-35 (Purple) -Q4 2023 to Q2 2024 -Currently in Bid/Award Process Phase 4 –I-35 to Scripture (Green) -Q1 2024 to Q1 2025 -Schedule dependent on approval of the Denton County 2022 Bond Phase 5 –Scripture to US-380 (Pink) -Q1 2025 to Q2 2026 -Schedule dependent on approval of the Denton County 2022 Bond Phase 6 –US-380 to US-77 (Blue) -Q1 2023 to Q4 2024 -Ready for Bid/Award end of Q4 2022 November 1, 2022 ID 22-1999 174 PROPOSED ROUNDABOUT AT WINDSOR 3 •Current plan for Bonnie Brae Phase 6 includes construction of a standard traffic signal and pedestrian crossing at intersection of Bonnie Brae Street and Windsor Drive •On August 16th, 2022 Council Member Davis requested information regarding the viability of replacing the planned signal with a roundabout similar to Bonnie Brae and Scripture •Council Member Davis provided email communications in early 2019 showing previous staff indicated this would be considered •This presentation details staff’s findings regarding the proposed roundabout location and considers impacts to the following items: •Project Cost •Project Schedule •Traffic Impacts •Pedestrian Travel •Vehicular Travel November 1, 2022 ID 22-1999 175 WINDSOR ROUNDABOUT COST BREAKDOWN 4 Estimated cost and schedule impact of adding Roundabout at intersection of Bonnie Brae and Windsor. Bonnie Brae Phase 6 Windsor Roundabout Inclusion Impacts Additional Items Schedule Delay (Months) Fee (Consultant)Construction Cost Increase Subtotals Comments Pavement redesign 1 $ 100,000 $ 150,000 $ 250,000 Increased pavement area, curbs, and landscaping Drainage redesign 1 $ 75,000 $ 50,000 $ 125,000 Additional inlets to accommodate drainage TCP redesign 1 $ 75,000 $ 100,000 $ 175,000 Temporary pavement required to maintain access Signal Omittance (Windsor)0 $ -$ (250,000)$ (250,000)Omit currently designed traffic signals Environmental re-eval 9 $ 75,000 $ 75,000 Section 4F investigation for taking Park ROW, must go through approval process with TxDOT environmental Additional ROW 12 $ 50,000 $ 300,000 $ 350,000 Maintain ROW footprint on north side, take from park and additional from SW corner parcel. Accommodating Fire station 4 $ 50,000 $ 150,000 $ 200,000 Additional pre-emptive signals required for fire station driveway near roundabout Utility Relocation Cost 24 $ 50,000 $ 1,000,000 $ 1,050,000 Estimated 3 DME tower relocations and water main relocation Months Delay 36 Additional Cost $ 1,975,000 November 1, 2022 ID 22-1999 176 WINDSOR ROUNDABOUT SCHEDULE IMPACT 5 •Bonnie Brae PH 6 outside funding breakdown •$11 million in Federal Highway Administration (FHWA) funding and $800k in TxDOT funding •This funding ($11.8 million in total) may be at risk if the project experiences a substantial delay due to redesign •New DISD Elementary School set to be opened August of 2024. Delay to Riney/Bonnie Brae will negatively impact school traffic. November 1, 2022 ID 22-1999 177 WINDSOR ROUNDABOUT PEDESTRIAN IMPACT 6 •Non-signalized pedestrian crossings present increased risk to students utilizing Bonnie Brae and/or Windsor as a pedestrian access route to DISD schools. •Motorists failed to yield to pedestrians 23% of the time at the entry leg and 38% of the time at the exit leg. Also, overall failure to yield at single lane roundabouts was 17% while multiple lane roundabouts was 43% meaning multiple lane roundabouts are a greater safety risk to pedestrians. (PedestrianLitReview_April2014.pdf (pedbikeinfo.org)) •Creates “multiple-threat scenario” and increased risk of pedestrian collision •Pedestrian traffic along this corridor expected to increase with the recently opened high school and planned elementary school •Added risk by having roundabout on access route to the new high school with new drivers •Vehicle risk due to proximity to fire station driveway and potential difficulty with a pre-emptive signal November 1, 2022 ID 22-1999 178 WINDSOR ROUNDABOUT UTILITY RELOCATIONS 7 •Utility relocation impact listed as 24-month potential schedule impact •42” North-South Water Transmission line and 138 kVA DME transmission line severely limited in available days to shut down for relocation •Material for both operations currently facing up to 12-month lead times to procure November 1, 2022 ID 22-1999 179 WINDSOR ROUNDABOUT FUTURE EXPANSION 8 •Previous Traffic Impact Analysis (1/17/20) estimates that Bonnie Brae may require upsizing to 6-lane divided highway by 2040. •Upsizing roadway to 6-lanes would necessitate a 3-lane roundabout which is very difficult for inexperienced drivers to understand and traverse •ADT value over 28,400 would necessitate 6 lane roadway •2020 study doesn’t account for new DISD elementary school, The Mark, or The Perch developments so volume may be exceeded before 2040 November 1, 2022 ID 22-1999 180 ADDITIONAL CONSIDERATIONS 9 While Roundabouts do provide for additional benefits where context sensitive design is incorporated, this location provides for the following considerations to be made: -The project risks potential withdrawal of Federal funding if a design changes results in a significant delay to starting construction -DISD faces delayed implementation of the Bonnie Brae PH 6 improvements that lead to the newly opened High School and proposed Elementary School -The neighborhood faces a delay to the improvement of the intersection of Bonnie Brae and Windsor from a 4-way stop to a signalized intersection This information was presented to Mobility Committee on 10/26/22 and their feedback was incorporated into the revised presentation. November 1, 2022 ID 22-1999 181 Questions? 10 November 1, 2022 ID 22-1999 182 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2144,Version:1 AGENDA CAPTION Proclamation: The Salvation Army’s Red Kettle Love Beyond Campaign City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™183 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2268,Version:1 AGENDA CAPTION Proclamation: Homeless and Hunger Week City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™184 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2259,Version:1 AGENDA CAPTION Mr. Nicholas Woods regarding the degradation of the Solomon Hill neighborhood. City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™185 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-1393,Version:1 AGENDA CAPTION Consider nominations/appointments to the City’s Boards,Commissions,and Committees:Public Art Committee. City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™186 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: City Secretary’s Office CM: Sara Hensley DATE: November 1, 2022 SUBJECT Consider nominations/appointments to the City’s Boards, Commissions, and Committees: Public Art Committee. BACKGROUND This item provides for the continued (re)appointment of members whose terms end(ed) in 2021 and 2022. It also provides for appointment to any existing vacancies resulting from resignations or those seats under which existing members are holding over from a previous term. Exhibit 2 includes those seats for the above-noted Boards, Commissions, and Committees for whom nominations have been received, nominees fully vetted and found to meet all necessary qualifications to serve on the respective board/commission/committee. Only those nominees who have been fully vetted and qualified will be presented for appointment. This is not a complete listing of nominees received to date as the vetting is still in progress for some or (re)nominations have not been received. EXHIBITS Exhibit 1 – Agenda Information Sheet Exhibit 2 – Nominations List Respectfully submitted: Rosa Rios City Secretary City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 187 BOARD/COMMITTEE/COMMISSION COUNCIL PLACE NOMINATING CCM NOMINEE PRESENT TERM NEW TERM STATUS & QUALIFICATION OR PREFERENCE, IF ANY Public Art Committee 2 Beck Valois (Val) Vera N/A UNEXPIREDSeptember 1, 2022throughAugust 31, 2024 New BOARDS & COMMISSIONS - NOMINATIONS LISTNOVEMBER 1, 2022 188 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-1697,Version:1 AGENDA CAPTION Consider approval of a resolution of the City of Denton adopting the City of Denton’s 2023-2024 Legislative Program; and providing an effective date. City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™189 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: City Manager’s Office CM/DCM/ACM: Sara Hensley, City Manager DATE: November 1, 2022 SUBJECT Consider approval of a resolution of the City of Denton adopting the City of Denton’s 2023-2024 Legislative Program; and providing an effective date. BACKGROUND City staff developed the City’s 2023-2024 Legislative Program conveying the City of Denton’s state and federal legislative policy direction and position on substantive issues. As a policy document, the Program provides direction to staff in how to respectfully advocate for the City in response to proposed legislation and in working with state and federal agencies. Staff met with the City’s state and federal legislative consultants, City departments, and peer jurisdictions, local organizations, and the Texas Municipal League during development and review to ensure priority alignment of the Legislative Program. DISCUSSION The City of Denton traditionally prepares a Legislative Program for each state biennial legislative session. Beginning this year, the Program also includes federal policy direction. As has been noted in previous legislative sessions, issues relating to local control will likely continue to be a focal point in the upcoming state legislative session. As a full-service city, numerous issues and bills may impact City operations, positively and negatively. As a response to the wide array of issues and bills potentially affecting cities and local governments this upcoming session, individual position statements covering each issue are not included, but instead summarized in statements under each key issue area. The attached Program is divided into several key issue areas: General Government, Funding, Economic Development, Land Use and Resources, Environment and Sustainability, Mobility and Transportation, Utilities, Community Development and Human Services, Public Safety, and Partnerships and Coalitions. Within each issue area, the Program includes the position the City will take on priority issues that are likely to be considered during the 88th Legislative Session. As it is difficult to anticipate every issue that will come before the Legislature, summarized statements for each issue area allow for a nimble, flexible, and timely response. The City’s federal legislative consultant, Capital Edge, and the City’s state legislative consultant, Jackson Walker, will utilize the Legislative Program for legislative advocacy efforts planned for the 88th Texas Legislative Session, as well as federal funding advocacy. PRIOR ACTION/REVIEW The draft 2023-2024 Legislative Program was provided to City Council in the October 14 Friday Report and within a Work Session presentation on October 25. The Program has been updated to reflect corrected City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 190 Mobility and Transportation direction and the updated Program was provided to Council via email on October 25. EXHIBITS 1. Exhibit 1 – Agenda Information Sheet 2. Exhibit 2 – 2023-2024 Legislative Program 3. Exhibit 3 – Resolution 4. Exhibit 4 – October 25 Work Session Presentation Respectfully submitted: Jennifer Rainey Assistant to the City Manager 191 2023-2024 Legislative Program TEXAS CITY OFDenton 192 2 City of Denton City Council Gerard HudspethMayor Gerard.Hudspeth@cityofdenton.com Brian BeckMayor Pro Tem | District 2 Brian.Beck@cityofdenton.com Vicki ByrdDistrict 1 Vicki.Byrd@cityofdenton.com Jesse DavisDistrict 3 Jesse.Davis@cityofdenton.com Alison MaguireDistrict 4 Alison.Maguire@cityofdenton.com Brandon Chase McGeeAt-Large Place 5 Brandon.McGee@cityofdenton.com Chris WattsAt-Large Place 6 Chris.Watts@cityofdenton.com General Legislative Policy Statement of Purpose The fundamental objective of the City’s legislative activities is to produce positive outcomes for the City of Denton and its residents. Frequently, legislative proposals have the potential to significantly impact the ability of the City to carry out its overall mission. By taking a proactive role in monitoring and engaging both state and Federal Legislatures on proposed legislation, interim charges, and funding opportunities, the City will work to ensure the Denton community will continue to enjoy the quality of life they have come to expect and deserve. Federal and state advocacy efforts of the City ensure the City’s priorities are promoted, defended, and understood as municipalities and local control are discussed. General Policies As a general policy, the City opposes any legislation: • Detrimental to the City of Denton’s strategic goals or limiting its home rule authority; • Contrary to the health, safety, and welfare of its residents; • Mandating increased costs or results in loss of revenues; • Adversely impacting municipal operations; or • Diminishing the fundamental authority of the City. As a general policy, the City supports any legislation: • Advancing the City’s strategic goals and interests;• Improving the health, safety, and welfare of its residents; or• Allowing the City to sufficiently fund its services and operations.• Tools and resources to enhance the quality of life of the Denton community. 193 3 General Government The City of Denton will work to protect Denton residents’ right to govern themselves and work with their local government and local elected officials to make decisions regarding their community at the local level. The City supports legislation protecting or advancing the principle of local control to allow for locally elected officials to make decisions beneficial to the interests of City residents or are otherwise beneficial to the City’s interest. The City of Denton opposes the pre-emption of municipal authority and the imposition of unfunded mandates. The City of Denton supports legislation improving government transparency, so long as such legislation does not create unwarranted confusion, unnecessarily duplicate existing disclosure requirements, or cause an undue burden as an unfunded mandate to the City. FundingThe City of Denton will work to protect the ability of the City’s elected governing body to set its own budget, raise the funding necessary to provide services to city residents and businesses, and effectively respond to the needs of the Denton community. The City of Denton further supports flexibility in the sources and generation of revenues and opposes the imposition of unfunded mandates or any action that substantially erodes Denton’s tax base. The City of Denton supports maintaining tax exemption for municipal bonds and reinstating advance refunding for municipal bonds. Economic DevelopmentThe City of Denton will continue to support access to economic development tools with the potential to expand our tax base, bring jobs to our community, and support businesses and industries that have chosen to locate themselves in Denton. The City of Denton further supports efforts increasing economic and workforce development for local jurisdictions via applicable tax credit opportunities, block and formula grant programs, and federal job training programs. Land Use and ResourcesThe City of Denton will protect the City’s ability to regulate its growth and land development, promote sound land use, and manage development within the city limits and our extraterritorial jurisdiction. The City of Denton further supports tools and authority to promote and regulate the health, safety, and welfare of the city, and flexibility in land development regulations and processes. Environment and SustainabilityThe City of Denton will support the enhancement and protection of the environment, including advocating for increased funding, supporting new and creative initiatives, and pursuing effective programs that preserve and promote sustainability. Mobility and TransportationThe City of Denton will support the improvement and enhancement of the mobility and transportation system throughout the state, region, and within the City of Denton, including advocating for increased mobility funding, additional non-vehicular mobility opportunities, increased bike and pedestrian routes, mobility safety improvements, and collaborative and innovative mobility and transportation solutions. The City of Denton further supports opportunities addressing the continued needs and growth of Denton Enterprise Airport. UtilitiesThe City of Denton will work to protect the City’s ability to manage our utilities, rights-of-way, and publicly owned land, and maintain our authority to make decisions about how our utilities are governed, funded, and operated. The City of Denton further supports the preservation of authority and structure of municipally owned utilities and opposes legislation diminishing the ability of the City to provide needed utility services at rates set by residents through the Denton City Council. The City of Denton will support electric market reforms that do not discriminate or penalize communities with policy choices protecting the environment and that increase ERCOT grid reliability and resiliency. 194 4 Community Development and Human ServicesThe City of Denton will work to encourage the expansion of human services to the Denton community, including access to affordable housing, social support for addressing homelessness, behavioral/mental health services, and access to high-quality and affordable childcare, education, and physical and mental health care. Public SafetyThe City of Denton will continue efforts to ensure the safety of our residents and administer efficient and effective public safety services and municipal court operations. The City of Denton further supports flexibility and resources for disaster response, increased availability of training and technology resources for public safety, statewide standards that uniformly enhance public safety, and the preservation of judicial discretion within the municipal court. Partnerships and Coalitions The City will partner with other cities, political subdivisions, private sector and non-profit entities, and other appropriate stakeholders sharing common goals with the City of Denton to advocate for or against proposed legislation. Additionally, the City will work in coordination with coalition organizations such as the Texas Municipal League, when their adopted positions are in line with the legislative objectives and goals of the City. These partnerships and coordinated efforts are intended to provide the City with a stronger presence in the legislative process. The City of Denton will continue to support local, regional, and state partners in meaningful ways benefitting the Denton community. To accomplish this goal, the City will support legislation directly benefiting the following partners, if such proposals do not adversely affect the City’s interests:• Denton County • Denton County Transportation Authority • North Central Texas College, the University of North Texas, Texas Woman’s University, and Denton Independent School District• Non-profit partners serving the Denton community and their ability to provide critical services to vulnerable Denton residents • Texas Municipal League Produced by the City of Denton • ADA/EOE/ADEA TDD (800) 735-2989 • www.cityofdenton.com 195 RESOLUTION NO. 22-1697 A RESOLUTION OF THE CITY OF DENTON ADOPTING THE CITY OF DENTON’S 2023- 2024 LEGISLATIVE PROGRAM; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, The City of Denton’s Legislative Program establishes its federal and state legislative advocacy priorities and policy direction; and WHEREAS, home rule authority, affordable housing, property tax relief and appraisals, unfunded mandates, annexation authority, city-funded advocacy, and many other legislative issues affecting local government may be considered at the Texas Legislative Session; and WHEREAS, grant and funding opportunities for core local government programs, economic and workforce development, and many other legislative issues affecting local government may be considered at the federal legislative level; and WHEREAS, the City of Denton desires to adopt its 2023-2024 Legislative Program; NOW THERFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City of Denton’s 2023-2024 Legislative Program is adopted as set forth herein and made a part of this resolution for all purposes. SECTION 2. The City Manager, or designee shall communicate the items included in the 2023- 2024 Legislative Program to members of the State of Texas and the federal legislatures representing the City of Denton, and other legislative members and staff as needed. SECTION 3. The City Manager, or designee is directed to provide state and federal policy advocacy as directed by the 2023-2024 Legislative Program by seeking passage of legislation and legislative amendments, supporting or opposing legislative and agency actions, providing testimony from elected officials and City staff, and through other appropriate means. SECTION 4. This resolution shall become effective immediately upon its passage and approval. The motion to approve this resolution was made by __________________________ and seconded by _________________________________. The resolution was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Gerard Hudspeth, Mayor: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ 196 P a g e 2 | 2 Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _________ day of ___________________, 2022. _______________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: _________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 197 City of Denton Legislative Program Ryan Adams Jennifer Rainey Oct. 25, 2022 22-1830; 10/25/2022 198 Summary •Federal Advocacy •State Advocacy and 88th Texas Legislative Session •Legislative Priorities and Direction 22-1830; 10/25/2022 2 199 Federal Advocacy Ralph Garboushain CapitalEdge 22-1830; 10/25/2022 3 200 Federal Advocacy •Denton’s federal advocacy is primarily grant-focused: •Authorizing legislation and funding bills •Regulations governing grant implementation •Major federal grant funding over the next 5-10 years •Secondary focus of advocacy: legislative and regulatory policy 22-1830; 10/25/2022 4 201 Federal Funding Advocacy Approach Federal Legislation Level •Tell Denton’s story to legislators and highlight impact of federal funds •Seek increases of funding in key areas Federal Rulemaking Level •Direct interaction with federal agencies •Increase the opportunity for Denton to be eligible for grant funding State-Level •Engage with state agencies on funding processes and requirements •Ensure continuity of our efforts between federal and state processes Ongoing Review of Funding Opportunities 22-1830; 10/25/2022 5 202 Federal Grants Process 1.Authorizing Legislation 2.Appropriations 3.Federal Agency Regulations 4.Allocation Allocation Routes •Direct Formula (CDBG, HOME, EECBG, etc.) •Competitive Grants •Formula Allocations to the States, then sub-allocated to local gov’ts and agencies (most common) 22-1830; 10/25/2022 6 203 IIJA and IRA •Infrastructure Investment & Jobs Act (IIJA) and the Inflation Reduction Act (IRA) •Provide a major, one-time infusion of federal funding for infrastructure •IIJA and IRA funding available to cities will flow through State agencies, with exceptions: •$28B per year through FY 26 for competitive surface transportation grants (IIJA) •Additional competitive and formula funding for an array of infrastructure categories (IIJA and IRA) •Wide array of tax credits (many are “direct pay”) for clean energy investments (IRA) 22-1830; 10/25/2022 7 204 Federal Advocacy Priorities Maintain & Enhance Local Authority Funding for Core Local Government Programs Economic & Workforce Development Transportation IIJA & IRA Implementation 22-1830; 10/25/2022 8 205 State Legislative Advocacy and 88th Texas Legislative Session Denise Rose and Kate Goodrich Jackson Walker 22-1830; 10/25/2022 9 206 State Funding Advocacy Approach Monitor State-Level Actions •Committee hearings, bill filings and actions, agency actions •Share important updates with City staff, partners, and Council Engage with Local Delegation and Full Legislature •Ensure they're kept informed of issues affecting Denton •Advocate on behalf of City policy; written and oral testimony Coordinate with similarly-situated groups •Texas Municipal League, state associations, peer cities, and others Ongoing Analysis of Draft Rules/Legislation 22-1830; 10/25/2022 10 207 State Advocacy Policy •Biennial Session •Support/Oppose Bills •Written/Oral Testimony •Tell Denton’s story and potential impact of legislation Rulemaking/Agency •Track Agency Rulemaking •Support/Oppose potential agency rules •Work with Agencies to resolve barriers to implementation Coordinate with other local governments and professional organizations 22-1830; 10/25/2022 11 208 88th Session of Texas Legislature •140 days every 2 years •Greater turnover in membership than in previous years •Significant uncertainty in House and Senate priorities •Potential Key Issues: •School Safety •Property Tax Reduction •Use of Budget Surplus •Electric Reliability •Sunset Review: TCEQ, PUCT, ERCOT Key Dates •Nov. 8: General Election •Nov. 14: Bill Pre-Filing •Jan. 10: Session Begins •March 10: Bill Filing Ends •May 29: Session Ends 22-1830; 10/25/2022 12 209 Potential City-Related Issues Property Tax Relief and Appraisals Extraterritorial Jurisdictions Affordable Housing Mental Health City-Funded Advocacy 22-1830; 10/25/2022 13 210 State Advocacy Priorities •Preserve Authority •Oppose unfunded mandates •Prevent adverse impacts of legislation •Advance priorities and interests •Improve health, safety, and welfare •Sufficiently fund operations and services •Tools and resources to enhance quality of life 22-1830; 10/25/2022 14 211 Legislative Program Ryan Adams and Jennifer Rainey 22-1830; 10/25/2022 15 212 Legislative Program Purpose •Statement of Council Direction •Demonstrates support or opposition to broad policy positions •Allows staff to quickly respond to an evolving environment •Statement of State and Federal Legislative Priorities •High-Level •Focused on legislative policy areas 22-1830; 10/25/2022 16 213 Elements of Legislative Program •Statement of Purpose •General Policies •Legislative Advocacy Focus Areas •Partnerships and Coalitions Areas of Legislative Advocacy Focus •General Government •Funding •Economic Development •Land Use and Resources •Environment and Sustainability •Mobility and Transportation •Utilities •Community Dev. and Human Services •Public Safety 22-1830; 10/25/2022 17 214 Legislative Proposal –Propane Safety •Seek introduction of legislation to allow permitting/inspection of propane gas installations in buildings by home-rule municipality •currently not expressly permitted •Allows cities, such as Denton, to confirm proper installation and general safety of structure occupants •Delegation members, TML, and peer cities have expressed support or interest in proceeding forward 22-1830; 10/25/2022 18 215 Direction and Next Steps •Seek direction to bring the Legislative Program to Council for adoption on Nov. 1 •Can begin advocacy on the day state bill filing begins (Nov. 14) •Will form the basis of advocacy going forward •Will be shared with state and federal delegation offices, peer cities, etc. 22-1830; 10/25/2022 19 216 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2270,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton repealing Ordinance No.21-2193 relating to the delegation of authority to the City Manager to administer Council Contingency fund spending agreements;and providing an effective date. City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™217 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Finance CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton repealing Ordinance No. 21-2193 relating to the delegation of authority to the City Manager to administer Council Contingency fund spending agreements; and providing an effective date. BACKGROUND Under Ordinance No. 21-2193, the Mayor and each individual Council Member is allocated $1,700 in Council Contingency funds each fiscal year. These funds can be contributed to non-profit organizations for specific events or to assist with the organization’s general operating expenses. Currently, the ordinance delegates authority to administer contingency fund agreements to the City Manager. In preparing the Fiscal Year (FY) 2022 –23 budget, staff began to evaluate all programs providing support to nonprofit organizations. Currently, there are three City funded programs like the Council Contingency funds that directly support non-profits: Sponsorship Program, Co-Sponsorship Program and Hotel Occupancy Tax (HOT) Funds. By Resolution 20-1471, the Community Partnership Committee reviews applications, makes funding recommendations to City Council and monitors use of funding provided through the Sponsorship Program and HOT Fund Program. The Committee meets annually to review and approve updates to the program guidelines and applications as well as carry out the outlined duties. Final funding and support allocations are approved by Council. Staff prepares funding agreements for each approved allocation under Sponsorship and HOT Fund programs which are also reviewed and approved by City Council. The Council Contingency funds shares common features with the Sponsorship and HOT Fund programs. The updated Sponsorship guidelines closely align with the current criteria for use of funds, providing more detail on eligibility and use. All follow the FY budget timeline and require funding agreements. On July 26, 2022, City Council received a presentation on the Contingency fund program. The Council found process improvements and benefits such as application and review simplifications, program standardization, and overall transparency of awards could be made by having the Community Partnership Committee review contingency fund requests and make recommendations on funding to the City Council. FISCAL INFORMATION Council Contingency funds are budgeted annually at a total of $11,900, providing $1,700 to the Mayor and each Council Member. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 218 EXHIBITS Exhibit 1 Agenda Information Sheet Exhibit 2 Ordinance 21-2193 Exhibit 3 Ordinance Respectfully submitted: Laura Behrens Assistant Director of Procurement, Warehouse, Grants 219 ORDINANCE NO. 21-2193 AN ORDINANCE OF THE CITY OF DENTON DELEGATING AUTHORITY TO THE CITY MANAGER TO ADMINISTER COUNCIL CONTINGENCY FUND SPENDING AGREEMENTS IN ACCORDANCE WITH THE PROCEDURE SET FORTH HEREIN, AND TO EXECUTE SAID AGREEMENTS; PROVIDING FOR THE EXPENDITC_]RE Of COUNCIL CONTINGENCY FUNDS IN ACCORDANCE WITH THE PROCEDURE SET FORTH HEREIN; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton budget includes contingency funds for the members of the City Council to make contributions to organizations that serve a public purpose; and WHEREAS, the City Council desires to delegate the authority to review such contributions and execute any related agreements to the City Manager, or their designee; and WHEREAS, the City of Denton supports non-profit organizations that strive to make the City a better place by providing services in the public interest; and WHEREAS, the City Council of the City of Denton hereby finds that the procedure and delegation of authority set forth in this Ordinance will provide the City Manager, or their designee, the ability to administer the contingency fund contributions, and that such contributions serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. Each member of the City Council may make contributions of contingency funds to organizations that meet the parameters as laid out in Section 3 of up to $1700.00 per year. SECTION 3. The members of the City Council may elect to provide such funding to entities that meet the following parameters: i) the organization is a non-profit entity that meets the City's requirements; and ii) the organization serves a public purpose; and iii) the funding of such organization by the City is in the public interest. SECTION 4. The members of the City Council may make an application to the City Manager, or their designee, for a contribution of contingency funds to an entity by providing the following information: 220 i) the legal name of the organization; and ii) the amount of funds to be contributed (which shall not be less than 250.00 per application); and iii) information about the purpose and activities of the organization and its public purpose; and iv) why funding such organization by the City would be in the public interest. The City Manager, or their designee, will review the provided information and determine if the request meets the parameters laid out in Section 3 of this Ordinance. The City Manager, or their designee, will maintain records as to the amount of funds distributed on behalf of each member of the City Council and ensure that any new request would not exceed a maximum of $1,700.00 per member of the City Council per Fiscal Year. SECTION 5. Upon determining that the proposed contribution meets the parameters laid out in Section 3 of this Ordinance, the City Manager, or their designee, is hereby authorized to execute a Council Contingency Fund Agreement (the "Agreement"), substantially similar to the form attached hereto, to carry out the duties and responsibilities of the City under the Agreement in accordance with the terms of the Agreement and this Ordinance. SECTION 6. Each member of the City Council must make any proposed contributions by September 15 of each Fiscal Year. SECTION 7. This Ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by Pk\iSon M6.gvt<`9— and seconded by ZjC , 06 +n ]1 V_C.le-- . This ordinance was passed and approved by the following vote [-7 - _Qj : PASSED AND APPROVED this the LIQ day of 0C+& b e.( , 2021. GERARD HUDSPETH, MAYOR Aye Nay Abstain Absent Mayor Gerard Hudspeth: V Vicki Byrd, District 1: Brian Beck, District 2: J Jesse Davis, District 3: Alison Maguire, District 4: Deb Armintor, At Large Place 5: Paul Meltzer, At Large Place 6: PASSED AND APPROVED this the LIQ day of 0C+& b e.( , 2021. GERARD HUDSPETH, MAYOR 221 ATTEST: ROSA RIOS, CITY SECRETARY APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY Digitallysigned by Marcella Lunn ON: cn=Marcella Luon,o, ou—City of Denton, email=marcelta.fvnn,cItyofdento n.comc=—Us BY: Date: 2021.10.13 18:34:02 -05'00' t' '••• a: s s rte'' F''••..«..••' p5,`* tN11110.111%``` 222 COUNCIL CONTINGENCY FUND AGREEMENT BETWEEN THE CITY OF DENTON AND 1 This Agreement is hereby entered into by and between the City ofDenton, a Texas home rule municipal corporation, hereinafter referred to as "City", and [ _ 1, a Texas non-profit corporation, hereinafter referred to as WHEREAS, City has determined that the services provided by [ _ to the citizens of City merit assistance through the Council Contingency Fund and City has provided funds in its budget for such Council Contingency Fund; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: I. OBLIGATIONS OF [ 1 In consideration of the receipt of funds from City, [ agrees to the following terms and conditions: A. [ 11100 ($L shall be paid to by City to be utilized for paying general expenses. B. [ 1 will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Upon request, I will permit authorized officials of City to review its books, financial statements, and records and provide copies of its By Laws, rules and regulations, and meeting minutes at any time. Such copies shall be made available within ten (10) business days of such request. All records pertaining to the funds granted hereby shall be maintained for at least five (5) years. D. I 1 will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. E. [ 1 will appoint a representative who will be available to meet with City officials when requested. F. [ 1 will comply with all applicable federal, State, and local laws and policies including all applicable equal employment opportunity and affirmative action laws or regulations. In the event of [ 's non-compliance with the non-discrimination Page 1 of 5 223 requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and I may be barred from further contracts with City. G I ] will comply with all applicable federal, State, and local laws and policies regarding conflicts of interest and will not participate in any transactions or decisions where such a conflict might exist. II. TIME OF PERFORMANCE The term of this Agreement shall commence on the date of the last signature affixed to this Agreement (the "effective date") and terminate unless the contract is sooner terminated under Section V "Termination". III. PAYMENTS A. PAYMENTS To [ 1. City shall pay to ] the sum specified in Article H after the effective date of this Agreement. B. EXCESS PAYMENT. [ ] shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: has resulted in overpayment to [ 1; or has not been spent strictly in accordance with the terms of this Agreement; or is not supported by adequate documentation to fully justify the expenditure. IV. EVALUATION I ] agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. F ] shall maintain records that provide complete and accurate statements as to the status and use of City funds. In addition, upon request, [ I agrees to provide City the following data and reports, or copies thereof: ail external or internal audits. [ ] shall submit a copy ofthe annual independent audit to City within ten (10) days ofreceipt; all external or internal evaluation reports; and an explanation of any major changes in program services. V. TERMINATION The City may terminate this Agreement for cause if } violates any covenants, agreements, or guarantees of this Agreement, the J's insolvency or filing of bankruptcy, dissolution, or receivership, or the [ I's violation ofany law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph, including for convenience. VI. WARRANTIES represents and warrants that: Page 2 of 5 224 A. All financial reports, information, reports, records, and data heretofore or hereafter requested by City and furnished to City, are complete and accurate and fairly reflect the financial conditions of [ 1, if applicable, as of the date shown on the financial report, information, data, record, or report, and, since that date, have not undergone any significant change, adverse or otherwise, without written notice to City. B. No litigation or legal proceedings are presently pending or threatened against I 1- C. None of the provisions herein contravenes or is in conflict with the authority under which [ is doing business or with the provisions of any existing indenture or agreement of [ ], D. [ I has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. E. does not have any conflicts of interest with respect to this transaction. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. VII. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. ] shall notify City of any changes in personnel or governing board composition. VIII. INDEMNIFICATION TO THE EXTENT AUTHORIZED BY LAW, THE I 1 AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR Page 3 of 5 225 INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE I I OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ( ], ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. IX. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand -delivery, c -mail, or facsimile, addressed to [ ] or City, as the case may be, at the following addresses: CITY I City of Denton, Texas [ 1 Attn: City Manager 215 E. McKinney Denton, TX 76201 ] E -Mail: [_ ] Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. X. MISCELLANEOUS A. [ I shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to hereunder, or any other act or failure ofCity to insist in any one or more instances upon the terms and conditions ofthis Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by [ ] . Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. Page 4 of 5 226 D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws ofthe State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2021. ATTEST: ROSA RIOS, CITY SECRETARY APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY CITY OF DENTON SARA HENSLEY, INTERIM CITY MANAGER Page 5 of 5 Name] Title] THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. SIGNATURE PRINTED NAME TITLE DEPARTMENT 227 ORDINANCE NO. ______________ AN ORDINANCE OF THE CITY OF DENTON REPEALING ORDINANCE NO. 21-2193 RELATING TO THE DELEGATION OF AUTHORITY TO THE CITY MANAGER TO ADMINISTER COUNCIL CONTINGENCY FUND SPENDING AGREEMENTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Ordinance No. 21-2193 established the delegation of authority to the City Manager to administer and execute Council Contingency fund spending; and WHEREAS, Ordinance No. 21-2193 also established a funding level, contribution parameters, and an application process for Council Contingency funds; and WHEREAS, at the July 26, 2022 meeting of the City Council, the Council found it is in the best interests of the public for the Community Partnership Committee to review Council Contingency requests and make recommendations on funding to the City Council for efficiency and consistency with other funding programs; and WHEREAS, the City Council hereby finds that Ordinance No. 21-2193 should be repealed; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. Ordinance No. 21-2193 is hereby repealed. SECTION 3. 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 Gerard Hudspeth, Mayor: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jessie Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ 228 PASSED AND APPROVED this the _________ day of ___________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 229 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2272,Version:1 AGENDA CAPTION Consider approval of a resolution of the City of Denton delegating certain administrative duties regarding the Council Contingency fund to the Community Partnership committee; and providing an effective date. City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™230 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Finance CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider approval of a resolution of the City of Denton delegating certain administrative duties regarding the Council Contingency fund to the Community Partnership committee; and providing an effective date. BACKGROUND Under Ordinance No. 21-2193, the Mayor and each individual Council Member is allocated $1,700 in Council Contingency funds each fiscal year. These funds can be contributed to non-profit organizations for specific events or to assist with the organization’s general operating expenses. Currently, the City Council delegates authority to administer contingency fund agreements to the City Manager. In preparing the Fiscal Year (FY) 2022 –23 budget, staff began to evaluate all programs providing support to nonprofit organizations. Currently, there are three City funded programs like the Council Contingency funds that directly support non-profits: Sponsorship Program, Co-Sponsorship Program and Hotel Occupancy Tax (HOT) Funds. By Resolution 20-1471, the Community Partnership Committee reviews applications, makes funding recommendations to City Council and monitors use of funding provided through the Sponsorship Program and HOT Fund Program. The Committee meets annually to review and approve updates to the program guidelines and applications as well as carry out the outlined duties. Final funding and support allocations are approved by Council. Staff prepares funding agreements for each approved allocation under Sponsorship and HOT Fund programs which are also reviewed and approved by City Council. The Council Contingency funds shares common features with the Sponsorship and HOT Fund programs. The updated Sponsorship guidelines closely align with the current criteria for use of funds, providing more detail on eligibility and use. All follow the FY budget timeline and require funding agreements. On July 26, 2022, City Council received a presentation on the Contingency fund program. The Council found process improvements and benefits such as application and review simplifications, program standardization, and overall transparency of awards could be made by having the Community Partnership Committee review contingency fund requests and make recommendations on funding to the City Council. FISCAL INFORMATION Council Contingency funds are budgeted annually at a total of $11,900, providing $1,700 to the Mayor and each Council Member. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 231 EXHIBITS Exhibit 1 Agenda Information Sheet Exhibit 2 Resolution Respectfully submitted: Laura Behrens Assistant Director of Procurement, Warehouse, Grants 232 RESOLUTION NO.___________ A RESOLUTION OF THE CITY OF DENTON DELEGATING CERTAIN ADMINISTRATIVE DUTIES REGARDING THE COUNCIL CONTINGENCY FUND TO THE COMMUNITY PARTNERSHIP COMMITTEE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Mayor and each individual Council Member are allocated $1,700 in Council Contingency funds each fiscal year and said funds are contributed to non-profit organizations for specific events or to assist with the organization’s general operating expenses; and WHEREAS, by Resolution 20-1471, the Community Partnership Committee reviews applications, makes funding recommendations to City Council and monitors the use of funding provided through the Sponsorship Program and HOT Fund Program; and WHEREAS, the Committee meets annually to review and approve updates to the program guidelines and applications as well as carry out outlined duties. Final funding and support allocations are approved by Council; and WHEREAS, the Council Contingency funds share common features with the Sponsorship and HOT Fund programs and the sponsorship guidelines closely align with the current criteria for use of Contingency funds and require funding agreements; and WHEREAS, in July 26, 2022, City Council received a presentation on the Contingency fund program. The Council found process improvements and benefits such as application and review simplifications, program standardization, and overall transparency of awards could be made by having the Community Partnership Committee review contingency fund requests and make recommendations on funding to the City Council; and WHEREAS, the City Council deems it in the public interest that the Community Partnership Committee should evaluate all Council Contingency requests determine the public purpose of each request and final funding allocations will be approved by Council; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The recitals which are set forth in the preamble of this Resolution are incorporated herein and are made part of this Resolution for all purposes. SECTION 2. City of Denton Resolution No. 20-1471; Section 2, (c) is hereby amended as follows: C. The duties and purpose of the Committee shall be: Monitoring allocation and use of the hotel occupancy tax, sponsorship funds, and council contingency funds and forwarding recommendations to Council for final approval; 233 Page 2 of 3 Ensuring HOT funds are being used to directly enhance and promote tourism and the hotel/convention industry; Ensuring the sponsorship and contingency funds are being used to further a charitable cause, economic or community growth and serve a public purpose in the best interest of the general welfare of the City of Denton; Recommending organizations to receive funding to the City Council; Establishing and updating guidelines related to Hot Funds, Sponsorship Funds, and Council Contingency funds and other duties as assigned by the City Council. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. The motion to approve this Resolution was made by __________________________ and seconded by _________________________________. The Resolution was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Gerard Hudspeth, Mayor: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jessie Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ 234 Page 3 of 3 PASSED AND APPROVED this the _________ day of ___________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 235 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2193,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a Professional Services Agreement with HDR Engineering,Inc.,for professional engineering services on the Lead and Copper Public Outreach and Crisis Communication Plan for the Water Utilities Department as set forth in the contract;providing for the expenditure of funds therefor;and providing an effective date (RFQ 7574-019 -Professional Services Agreement for engineering services awarded to HDR Engineering,Inc.,in the not-to-exceed amount of $217,106.50).The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™236 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Professional Services Agreement with HDR Engineering, Inc., for professional engineering services on the Lead and Copper Public Outreach and Crisis Communication Plan for the Water Utilities Department as set forth in the contract; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7574-019 – Professional Services Agreement for engineering services awarded to HDR Engineering, Inc., in the not-to-exceed amount of $217,106.50). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND On December 16, 2021, the United States Environmental Protection Agency (USEPA) updated the Lead and Copper Rule (LCR). These revisions, titled Lead and Copper Rule Revisions (LCRR), put in place a proactive and holistic framework designed to address lead and copper in drinking water systems. Part of this framework focuses specifically on the areas of public education and communication with regard to lead and copper, health risks, and lead service line replacement. The revised rule also requires that utilities engage with schools and day-care facilities to educate them with regard to the risk of lead in drinking water and the new sampling required for these facilities by the rule. Another important requirement of the revised LCRR is a crisis communications plan should the trigger and action levels of lead be exceeded. The new communication requirements under the LCRR must be implemented by October 2024. The LCRR has requirements that will affect utilities in multiple ways, including new testing requirements, treatment requirements, service line identification/replacements, as well as public outreach/notification. The scope of the contract under consideration includes: • Developing a road map for LCRR compliance; • Developing a Public Outreach Strategy in compliance with the LCRR; • Develop Public Outreach Materials/Toolkits; • Developing a Crisis Communications Plan; • Providing On-Call Support; • Providing Project Management Service. Water Utilities Staff evaluated the qualifications and ability of HDR Engineering, Inc. to complete this Lead and Copper Public Outreach and Crisis Communication Plan. Based on the firm’s experience and staff City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 237 assigned to the project staff have determined that the professional services firm is highly qualified to perform this work. HDR Engineering, Inc. is prequalified by RFQ 7574 received by the Purchasing Department. Staff elected to solicit a formal scope and fee proposal from HDR Engineering, Inc. A formalized scope of work was developed based upon a discussion with wastewater staff and the firm submitted a scope and fee proposal. Request for Qualifications for professional engineering services for Water and Wastewater was solicited using the City’s formal solicitation process. City Council approved a pre-qualified list of engineering firms on March 23, 2021 (Ordinance 21-546). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On March 23, 2021, Council approved RFQ 7574 for a prequalified list of professional engineering firms for Water and Wastewater (Ordinance 21-546). On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with HDR Engineering, Inc., for professional engineering services on the Lead and Copper Public Outreach and Crisis Communication Plan for the Water Utilities Department, in a not-to-exceed amount of $217,106.50. PRINCIPAL PLACE OF BUSINESS HDR Engineering, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT The project is expected to be completed twelve months after the contract is signed. FISCAL INFORMATION The project will be funded from Lead and Copper Public Outreach and Crisis Communication account 630507517.1365.30200. Requisition #156953 has been entered into the Purchasing software system in the amount of $217,106.50. The budgeted amount for this item is $217,106.50. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Ordinance and Contract Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager 238 For information concerning this acquisition, contact: Stephen Gay, 940-349-8086. Legal point of contact: Marcella Lunn at 940-349-8333. 239 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH HDR ENGINEERING, INC., FOR PROFESSIONAL ENGINEERING SERVICES ON THE LEAD AND COPPER PUBLIC OUTREACH AND CRISIS COMMUNICATION PLAN FOR THE WATER UTILITIES DEPARTMENT AS SET FORTH IN THE CONTRACT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFQ 7574-019 PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES AWARDED TO HDR ENGINEERING, INC., IN THE NOT-TO-EXCEED AMOUNT OF $217,106.50). WHEREAS, on March 23, 2021, the City Council approved a pre-qualified engineer list for Water and Wastewater (Ordinance 21-546), and t ) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, function; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with, and not higher than, the recommended practices and fees published by the professional , and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or their designee, is hereby authorized to enter into an agreement with to HDR Engineering, Inc., for professional engineering services on the Lead and Copper Public Outreach and Crisis Communication Plan for the Water Utilities Department, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager, or their designee, is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. 240 The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 241 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB PSA 7574-019 Crystal Westbrook LEAD & COPPER PUBLIC OUTREACH & CRISIS COMMUNICATION PLAN Not Applicable 242 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 1 of 19 CITY OF DENTON, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONAL SERVICES This AGREEMENT is between the City of Denton, a Texas home-rule municipality ("CITY"), and HDR ENGINEERING, INC., with its corporate office at 1917 S. 67TH STREET, OMAHA, NE 68106 and authorized to do business in Texas, ("ENGINEER"), for a PROJECT generally described as: LEAD AND COPPER PUBLIC OUTREACH AND CRISIS COMUNNICATION PLAN (the "PROJECT"). SECTION 1 Scope of Services A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agrees to perform, professional engineering services set forth in the Scope of Services attached hereto as Attachment A. These services shall be performed in connection with the PROJECT. B. Additional services, if any, will be requested in writing by the CITY. CITY shall not pay for any work performed by ENGINEER or its consultants, subcontractors and/or suppliers that has not been ordered in advance and in writing. It is specifically agreed that ENGINEER shall not be compensated for any additional work resulting from oral orders of any person. SECTION 2 Compensation and Term of Agreement A. The ENGINEER shall be compensated for all services provided pursuant to this AGREEMENT in an amount not to exceed $217,106.50 in the manner and in accordance with the fee schedule as set forth in Attachment A. Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment A. B. Unless otherwise terminated pursuant to Section 6. D. herein, this AGREEMENT shall be for a term beginning upon the effective date, as described below, and shall continue for a period which may reasonably be required for the completion of the PROJECT, until the expiration of the funds, or completion of the PROJECT and acceptance by the CITY, whichever occurs first. ENGINEER shall proceed diligently with the PROJECT to completion as described in the PROJECT schedule as set forth in Attachment A. SECTION 3 Terms of Payment Payments to the ENGINEER will be made as follows: DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 243 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 2 of 19 A. Invoice and Payment (1) The Engineer shall provide the City sufficient documentation, including but not limited to meeting the requirements set forth in the PROJECT schedule as set forth in Attachment to reasonably substantiate the invoices. (2) The ENGINEER will issue monthly invoices for all work performed under this AGREEMENT. Invoices for the uncontested performance of the particular services are due and payable within 30 days of receipt by City. (3) Upon completion of services enumerated in Section 1, the final payment of any balance for the uncontested performance of the services will be due within 30 days of receipt of the final invoice. (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. SECTION 4 Obligations of the Engineer A. General The ENGINEER will serve as the CITY's professional engineering representative under this AGREEMENT, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The ENGINEER shall perform its services: (1) with the professional skill and care ordinarily provided by competent engineers practicing in the same or similar locality and under the same or similar circumstances and professional license; and DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 244 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 3 of 19 (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment A. (2) In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the original drawings of all plans in ink on reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein. E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on-site representatives or otherwise, do not make the ENGINEER or its personnel in any way responsible for those duties that belong to the CITY and/or the CITY's construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the AGREEMENT Documents and any health or safety precautions required by such construction work. The ENGINEER and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 245 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 4 of 19 Attachment A, the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site to become familiar with the progress or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the PROJECT, when completed, will be in accordance with the AGREEMENT Documents, nor shall anything in the AGREEMENT Documents or this AGREEMENT between CITY and ENGINEER be construed as requiring ENGINEER to make exhaustive or continuous on-site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the ENGINEER makes on-site observation(s) of a deviation from the AGREEMENT Documents, the ENGINEER shall inform the CITY. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon such certification to establish materials, systems or equipment and performance criteria to be required in the AGREEMENT Documents. F. Opinions of Probable Cost, Financial Considerations, and Schedules (1) The ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment A. (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENGINEER's opinions, analyses, projections, or estimates. G. Construction Progress Payments Recommendations by the ENGINEER to the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER's knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the ENGINEER to ascertain that the construction contractor has completed the work in exact accordance with the DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 246 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 5 of 19 AGREEMENT Documents; that the final work will be acceptable in all respects; that the ENGINEER has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work, materials, or equipment has passed to the CITY free and clear of liens, claims, security interests, or encumbrances; or that there are not other matters at issue between the CITY and the construction contractor that affect the amount that should be paid. H. Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Right to Audit (1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after final payment under this AGREEMENT, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this AGREEMENT. ENGINEER agrees that the CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CITY shall give ENGINEER reasonable advance notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this section together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits. (3) ENGINEER and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 247 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 6 of 19 J. INSURANCE (1) ENGINEER’S INSURANCE a. Commercial General Liability – the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. i. The CITY shall be included as an additional insured with all rights of defense under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless the CITY specifically approves such exclusions in writing. ii. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this AGREEMENT. b. Business Auto – the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of “any auto”, including owned, hired, and non-owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non-owned is acceptable. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this AGREEMENT or under any applicable auto physical damage coverage. c. Workers’ Compensation – ENGINEER shall maintain workers DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 248 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 7 of 19 compensation and employers liability insurance and, if necessary, commercial umbrella liability insurance with a limit of not less than $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer’s liability or commercial umbrella insurance obtained by ENGINEER pursuant to this AGREEMENT. d. Professional Liability – ENGINEER shall maintain professional liability, a claims-made policy, with a minimum of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the AGREEMENT or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of 5 years following the completion of the AGREEMENT. An annual certificate of insurance specifically referencing this PROJECT shall be submitted to the CITY for each year following completion of the AGREEMENT. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be attached to this AGREEMENT prior to its execution. b. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, subject to any defense provided by the policy, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this AGREEMENT are provided under applicable policies documented thereon. d. Any failure on part of the CITY to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. e. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the respective Department Director (by name), City of Denton, 901 Texas Street, Denton, Texas 76209. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 249 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 8 of 19 f. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first-dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY. h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. i. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims-made basis, shall contain a retroactive date coincident with or prior to the date of the AGREEMENT. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. l. The CITY shall not be responsible for the direct payment of any insurance premiums required by this AGREEMENT. m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. K. Independent Consultant DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 250 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 9 of 19 The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. The doctrine of respondeat superior shall not apply. L. Disclosure The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The ENGINEER further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this AGREEMENT and prior to final payment under the AGREEMENT. M. Asbestos or Hazardous Substances (1) If asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CITY may request the ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. N. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this AGREEMENT was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this AGREEMENT which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. O. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment A to this AGREEMENT. P. Equal Opportunity (1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agents shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 251 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 10 of 19 testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this AGREEMENT. (2) Americans with Disabilities Act (ADA) Compliance: ENGINEER and ENGINEER’s agents shall not engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. SECTION 5 Obligations of the City A. City-Furnished Data ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the ENGINEER as required for the ENGINEER's performance of its services. The CITY will perform, at no cost to the ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGINEER's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights-of-way, and access necessary for the ENGINEER's services or PROJECT construction. D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the PROJECT schedule prepared in accordance with Attachment A. E. Prompt Notice The CITY will give prompt written notice to the ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 252 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 11 of 19 services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases ENGINEER from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of ENGINEER’s negligence or if ENGINEER brings such hazardous substance, contaminant or asbestos onto the PROJECT. G. Contractor Indemnification and Claims The CITY agrees to include in all construction contracts the provisions of Article IV.E. regarding the ENGINEER's Personnel at Construction Site, and provisions providing for contractor indemnification of the CITY and the ENGINEER for contractor's negligence. H. Contractor Claims and Third-Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the ENGINEER, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the ENGINEER." (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER and there are no third-party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third-party beneficiary rights under this AGREEMENT. (4) Nothing contained in this Section H. shall be construed as a waiver of any right the CITY has to bring a claim against ENGINEER. I. CITY's Insurance DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 253 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 12 of 19 (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY may secure Builders Risk/Installation insurance at the replacement cost value of the PROJECT. The CITY may provide ENGINEER a copy of the policy or documentation of such on a certificate of insurance. J. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. K. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. SECTION 6 General Legal Provisions A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the CITY's sole risk. The CITY shall own the final designs, drawings, specifications and documents. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 254 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 13 of 19 C. Force Majeure The ENGINEER is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER that prevent ENGINEER’s performance of its obligations hereunder. D. Termination (1) This AGREEMENT may be terminated: a. by the City for its convenience upon 30 days' written notice to ENGINEER. b. by either the CITY or the ENGINEER for cause if either party fails substantially to perform through no fault of the other and the nonperforming party does not commence correction of such nonperformance within 5 days’ written notice or thereafter fails to diligently complete the correction. (2) If this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a. Cost of reproduction of partial or complete studies, plans, specifications or other forms of ENGINEER'S work product; b. Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c. The time requirements for the ENGINEER'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY'S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made. F. Indemnification DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 255 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 14 of 19 IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904, THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST LIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’S LIABILITY. G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Denton County, Texas. I. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Sections 5.F., 6.B., 6.D., 6.F., 6.H., and 6.I. shall survive termination of this AGREEMENT for any cause. J. Observe and Comply ENGINEER shall at all times observe and comply with all federal and State laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY ARISING OUT OF THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION, WHETHER IT BE BY ITSELF OR ITS EMPLOYEES. K. Immigration Nationality Act DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 256 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 15 of 19 ENGINEER shall verify the identity and employment eligibility of its employees who perform work under this AGREEMENT, including completing the Employment Eligibility Verification Form (I-9). Upon request by CITY, ENGINEER shall provide CITY with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this AGREEMENT. ENGINEER shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any ENGINEER employee who is not legally eligible to perform such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have the right to immediately terminate this AGREEMENT for violations of this provision by ENGINEER. L. Prohibition On Contracts With Companies Boycotting Israel Engineer acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. M. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. N. Prohibition on Contracts with Companies Boycotting Certain Energy Companies Engineer acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 257 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 16 of 19 goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. O. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations Engineer acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. P. Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Engineer is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. Q. 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 DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 258 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 17 of 19 unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Engineer submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Engineer 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/filinginfo/1295/ 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 Commission’s website within seven business days. R. 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 as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Engineer shall complete and submit the City’s Conflict of Interest Questionnaire. S. Agreement Documents This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, which supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. This AGREEMENT may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The following attachments and schedules are hereby made a part of this AGREEMENT: DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 259 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 18 of 19 Attachment A - Scope of Services, Compensation, Project Schedule These documents make up the AGREEMENT 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 AGREEMENT documents, the inconsistency or conflict shall be resolved by giving precedence first to the written AGREEMENT then to the AGREEMENT documents in the order in which they are listed above. 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. Duly executed by each party’s designated representative to be effective on _____________________________. ENGINEER BY:______________________________ AUTHORIZED SIGNATURE Printed Name:_____________________ Title:____________________________ __________________________________ PHONE NUMBER _________________________________ EMAIL ADDRESS ___________________________________ TEXAS ETHICS COMMISSION 1295 CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: _____________________________ ATTEST: ROSA RIOS, CITY SECRETARY BY: _______________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _______________________________ DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 2022-939936 Lucas A. Bathurst luke.bathurst@hdrinc.com Vice President 817-333-2806 260 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 19 of 19 THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB Stephen D. Gay Director Water Utilities 261 Scope of Services Lead and Copper Public Outreach and Crisis Communication Plan, City of Denton, Texas Project No. 1 Attachment A SCOPE OF SERVICES LEAD AND COPPER PUBLIC OUTREACH AND CRISIS COMMUNICATION PLAN CITY OF DENTON, TEXAS PROJECT NO. GENERAL DESCRIPTION The City of Denton ("City") selected HDR Engineering, Inc. ("A/E") as the Architectural/ Engineering (A/E) firm for professional services on the Lead and Copper Public Outreach and Crisis Communication Plan (Project). This Scope of Services sets forth the services, activities, deliverables, and responsibilities that will be performed by the A/E pursuant to the Agreement. The terms contained in this Scope of Services shall have the meanings set forth in the Agreement unless otherwise defined in the Scope of Services. BACKGROUND On December 16, 2021, the United Sates Environmental Protection Agency (USEPA) updated the Lead and Copper Rule (LCR). These revisions put in place a proactive and holistic framework designed to address lead and copper in drinking water systems. Part of this framework focuses specifically on the areas of public education and communication with regards to the LCR, health risks and lead service line replacement. The rule also requires that utilities engage with schools and day- care facilities to educate them with regards to the risk of lead in drinking water and the new sampling required for these facilities by the rule. Another important requirement of the revised LCR is a crisis communications plan should the action level of lead be exceeded. Revisions to the LCR, regarding communication must be implemented by October of 2024. The LCR Revision (LCRR) has requirements that will affect utilities in multiple ways, including new testing requirements, treatment requirements, service line identification/replacements, as well as public outreach/notification. This Scope of Services includes Public Outreach as delineated further below. ASSUMPTIONS The following assumptions have been included in the preparation of this Scope of Services. These assumptions are based on the project scope. Strict adherence to the assumptions described below is a specific condition to this scope of services. Deviations from these assumptions will require additional effort not previously considered by A/E. Should deviations from these assumptions be required to deliver the services described in this Scope of Services, the scope of services and compensation shall be modified accordingly and approved by City in writing before any changes to this Scope of Services can be implemented or delivery of the original Scope of Services completed. General Assumptions o City has provided A/E a copy of their current Lead and Copper Sampling Protocol. o City will provide GIS files for service line inventory to be used on the public facing website. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 262 Scope of Services Lead and Copper Public Outreach and Crisis Communication Plan, City of Denton, Texas Project No. 2 o City will provide GIS files for a map of homes built before 1986 that include the data as a field in the shape files. o City will provide GIS files for a map of current sampling areas. o City staff will be available for workshops (virtual or in-person, to be determined) and follow up correspondence. Public Outreach Assumptions o A/E will host LCR website that will be linked to/from City website but will utilize a URL that can be shared on outreach materials. URL to be decided on by the City as part of the branding workshop. o Documents will be delivered electronically. o Materials will be provided in Word, Excel, or PDF as appropriate. o City will perform up to three (3) rounds of review on content documents and materials. o City will have up to two (2) weeks for review per document and provide consolidated comments from staff members. o City will coordinate printing and dissemination with print and distribution vendors. o City will distribute project emails to its employee database. o City will facilitate internal training for call center employees and customer service field crews. o City will provide already-existing b-roll footage digitally. A/E will arrange for the capture of additional b-roll if needed. The tasks set forth in this Scope of Services and the services, activities, responsibilities, and Deliverables that shall be performed or provided by A/E in accordance with the Agreement are as follows: SCOPE OF SERVICES TASK 1 PROJECT MANAGEMENT This task includes general functions required to maintain the project schedule, budget, and quality control. A/E shall prepare and submit monthly status reports with invoices. A/E will participate in monthly status meetings with the City project manager through the anticipated 12-month schedule for the project and that these meetings will primarily be virtual. A/E will prepare agendas and meeting notes for each monthly meeting for submittal to City. DELIVERABLES Monthly invoices and monthly project status reports Monthly status meeting agenda and meeting notes DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 263 Scope of Services Lead and Copper Public Outreach and Crisis Communication Plan, City of Denton, Texas Project No. 3 TASK 2 LCR PRACTICES AND PROJECT CHARTERING WORKSHOP To aide in the LCRR Communication Planning, the A/E will document the City’s ongoing activities performed to comply with the current LCR and pending LCRR. The A/E will provide a formal information request to the City. The A/E will then facilitate a chartering workshop with the City to discuss current protocols and practices, identify remaining knowledge gaps, and outline potential opportunities and challenges related to the collection of critical information. A/E will develop a roadmap and preliminary timeline for LCRR compliance to use as immediate talking points with City staff and elected officials. DELIVERABLES Meeting minutes from LCR Practices and Project Chartering Workshop Summary of identified resources and remaining information needs Roadmap for LCRR compliance to be used as talking points for City staff and elected officials. TASK 3 PUBLIC OUTREACH The A/E will provide the City public outreach and communication planning and support to address the related elements of the LCRR. Task 3.1 LCRR Communication Planning. The A/E will develop a comprehensive public outreach and crisis communication plan that will be used to guide employee communication and a customer awareness and community education campaign focusing on the new lead and copper rule regulations. The communication plan development will include the following subtasks: The A/E will create LCRR communication toolkit outlines for area utilities, schools, and childcare centers. The A/E will conduct up to three (3) communication workshops with the City to define a communication plan that will be developed to inform, educate, update, and collaborate with the public, critical internal and external stakeholders, translate technical content for public consumption, and identify engagement channels and the messages that will resonate with key audiences. o Workshop 1 – Initial Approach: Internal Communication & Audience Identification o Workshop 2 – External Approach: Partner & Agency Communication Invite Public Information Officer (PIO)s and essential agency communications personnel from schools and the public health department to receive feedback on communication channels, messages and timing. o Workshop 3 – Communication Plan & Draft Approach The A/E will conduct three (3) branding workshops to establish the LCRR visual aesthetic, brand promise, tagline, and messaging used in communication materials. The workshops are defined as follows: a. Discover: Internal Branding Kick-off Meeting (Workshop 1) b. Imagine: Mood and Archetype Boards (Workshop 2), Concept Selection (Workshop 3) c. Activate: Brand Book Development and Brand Package Delivery The A/E will develop a customer survey for lead service line identification. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 264 Scope of Services Lead and Copper Public Outreach and Crisis Communication Plan, City of Denton, Texas Project No. 4 Task 3.2 LCRR Outreach. The A/E will support the implementation of the City’s LCRR outreach and develop/deploy communication materials, toolkits and templates identified in the communication plan. The A/E will provide the following services for this task: Develop public facing website to provide the public and stakeholders information and updates on requirements of LCRR compliance including an online interactive map of the LSL inventory, sampling and monitoring information, and information on LSL replacement process. Develop interactive map for the public facing website with an online interface to display LSL inventory data including material, diameter, and meter information for the City and customer owned portions of the system. It is anticipated that some classifications may initially be ‘unknown’ and determined through subsequent phases. Develop community toolkits to provide materials that will deliver clear and concise communication to key stakeholders – neighboring utilities, local childcare centers and school-based administrators. Support customer outreach for the lead service line inventory, ongoing sampling and monitoring, and exceedance notifications. Support school and daycare outreach by holding stakeholder meetings (prioritization and messaging). Provide media relations support. Task 3.3 LCRR Communication Monitoring and Evaluation. The A/E will evaluate LCRR communication efforts and provide ongoing feedback on potential improvements. Establish communication key performance indicators (KPIs) that align with the communication plan goals and objectives. Create materials that help the City chart important milestones related to LCRR efforts and communication with local executives, elected officials and partner agencies. Task 3.4 Crisis Communications and On-Call Support. The A/E will provide various on-call strategic communications support to the City on an as-needed basis. Provide on-call support that will include, but is not limited to, crisis communication, graphic design, multimedia and web development, and media relations for various programs and events, such as public hearings, crises and meetings. DELIVERABLES Task 3.1 LCRR Communication Planning o Draft and final communication plan o Draft and final workshop summaries o Draft and final brand book and brand package o Draft and final LSL customer survey Task 3.2 LCRR Outreach o Draft and final utility communication toolkit, to include at a minimum: Customer sampling report Water quality report LSL replacement notification template Customer funding flyer and email Sampling instructions (1st through 5th liter) o Draft and final communication toolkit for local childcare centers o Draft and final school communication toolkit for local administrators of public DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 265 Scope of Services Lead and Copper Public Outreach and Crisis Communication Plan, City of Denton, Texas Project No. 5 schools, private schools and homeschool environments, to include at minimum: Sampling instructions Action level exceedance report Action level notification template LSL post-replacement instructions (to address flushing and filters) o Draft and final student engagement LCRR activity toolkit for teachers, aligned with the Ford Next Generation Learning college and career model that gives students exposure to STEM education through the lens of postsecondary readiness. Sample lessons Activity sheets o Draft and final customer education program booklet: Speaker’s Bureau Draft and final speaker’s bureau guidance document including: o Identification of influencers and significant events o Identification of licensing agencies (local and state) for childcare centers Draft and final schedule, including coordination of key spokespeople Draft and final talking points Draft and final PowerPoint Draft and final social media posts, up to three Draft and final email newsletter template o Lead Service Line Outreach Materials: Materials that will answer key customer questions on what to do when you have a lead service line, funding opportunities, how to request a water testing kit and the customer lead service line survey. Materials will include, but are not limited to: Draft and final webpage Draft and final flyer o Draft and final social media posts (up to six) o Draft and final social media strategy and content calendar o Draft and final press release announcing the program o Quarterly news briefings highlighting stories of success throughout the area featuring customer testimonials and utility staff Draft and final media advisory template Up to two A/E personnel attending in-person press events (up to four events per year) Monthly follow-up outreach with news media Draft and final media relations pitch calendar Task 3.3 LCRR Communication Monitoring and Evaluation o Draft and final progress report template o Draft and final progress reports, up to 12 per year o Draft and final progress dashboard Task 3.4 Crisis Communications and On-Call Support o Graphic design, multimedia, and web development. o Media relations support. o Planning and strategy support through meetings with City. o Program and event support. DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 266 Work Task BreakdownCity of Denton, TexasLead and Copper OutreachI. Manpower Estimate: All TasksRob Hoffman Chance Lauderdale Gwen Jurisich Ameerah Palacios Cristina Mena Caroline HazelbakerFergusonCompany Officer Company OfficerCommunications ManagerCommunications ManagerGraphic DesignerCommunications CoordinatorWeb DeveloperAdministrative AssistantProject RolePICChartering Workshop, Overall QCPM & Outreach LeadOutreach QC ReviewerGraphic Designer Outreach Support Web DeveloperAdmin & Accounting370.00$ 380.00$ 160.00$ 160.00$ 105.00$ 110.00$ 135.00$ 115.00$ 1 Project Management18162400016101 $ 19,440.00 1.1 ‐ Contract Setup/Execution2 0 6 0000210 $ 1,930.00 1.2 ‐ Project Monitoring, Control, and QAQC5 0 30 3000240 $ 7,360.00 1.3 ‐ Project Team Communication Plan112100005 $ 1,230.00 1.4 ‐ Monthly Status Updates and Invoices1002400001246 $ 8,920.00 2 LCR Practices and Project Chartering Workshop4464640028 $ 5,670.00 2.1 ‐ Team Chartering Session (In person)2242420016 $ 3,100.00 2.2 ‐ Summary of Identified Resources and Remaining Information Needs2222220012 $ 2,570.00 3 Public Outreach15.513.53636157533010001458 $ 188,880.00 3.1 ‐ LCRR Communication Planning8.56.584161295900303 $ 41,650.00 Communication Workshop 1: Initial Approach: Internal Communication & Audience Identification211023100028 $ 4,455.00 Communication Workshop 2: External Approach: Partner & Agency Communication 211023100028 $ 4,455.00 Communication Workshop 3: Communication Plan & Draft Approach111023100027 $ 4,085.00 Branding Workshop 1: Internal Branding Kick‐off Meeting 11623040044 $ 5,620.00 Branding Workshop 2: Mood and Archetype Boards11623020042 $ 5,400.00 Branding Workshop 3: Concept Selection11323010038 $ 4,810.00 Draft and final workshop documentation002525100042 $ 5,945.00 Draft and final brand book and brand package 00412520032 $ 3,645.00 Draft and final LSL customer survey0.50.51010100022 $ 3,235.00 3.2 ‐ LCRR Outreach6.56.521336325215900892 $ 114,640.00 Draft and Final Customer sampling report0.50.5611040022 $ 2,985.00 Draft and Final Customer water quality report0.50.5511050022 $ 2,935.00 Draft and Final Customer LSL replacement notification template0.50.5511050022 $ 2,935.00 Draft and Final Customer funding flyer and email00512050031 $ 3,610.00 Draft and Final Customer Sampling instructions (e.g. 1st and 5th liter)0.50.5511050022 $ 2,935.00 Draft and Final Sampling instructions ‐ School Toolkit0.50.5511050022 $ 2,935.00 Draft and Final Action level exceedance report ‐ School Toolkit0.50.5511050022 $ 2,935.00 Draft and Final Action level notification template ‐ School Toolkit0.50.5511050022 $ 2,935.00 Draft and Final LSL post‐replacement instructions (to address flushing and filters) ‐ School Toolkit0.50.5511050022 $ 2,935.00 Draft and Final Sampling instructions ‐ Childcare Center Toolkit0.50.5511050022 $ 2,935.00 Draft and Final Action level exceedance report ‐ Childcare Center Toolkit0.50.531520012 $ 1,760.00 Draft and Final Action level notification template ‐ Childcare Center Toolkit0.50.5511050022 $ 2,935.00 Draft and Final LSL post‐replacement instructions (to address flushing and filters) ‐ Childcare Center Toolkit0.50.5511050022 $ 2,935.00 Direct Labor Rates ClassificationsBilling Rates1 TASK/DESCRIPTIONTotal HoursLabor CostDocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB267 Work Task BreakdownCity of Denton, TexasLead and Copper OutreachSample lessons ‐ Draft and final student engagement LCRR activity toolkit 00411030018 $ 2,180.00 Activity sheets ‐ Draft and final student engagement LCRR activity toolkit 00411030018 $ 2,180.00 Draft and final customer education program booklet (design, layout, cover)00212520030 $ 3,325.00 Draft and final speaker’s bureau guidance document (identification of influencers, events, licensiving agencies for childcare centers0010110100031 $ 3,910.00 Draft and final schedule, including coordination of key spokespeople 0010110100031 $ 3,910.00 Draft and final talking points0.50.531520012 $ 1,760.00 Draft and final PowerPoint 0010120100041 $ 4,960.00 Draft and final social media posts, up to three00211550023 $ 2,605.00 Draft and final email newsletter template 00211550023 $ 2,605.00 Draft and final LSL Outreach webpage001034520900168 $ 21,155.00 Draft and final LSL Outreach flyer00411040019 $ 2,290.00 Draft and final social media posts (up to six)0010215150042 $ 5,145.00 Draft and final social media strategy and content calendar003020300062 $ 8,420.00 Draft and final press release announcing the program002102005 $ 700.00 Quarterly news briefings (participation of up to two staff per event)0082000010 $ 1,600.00 Briefing Prep: customer testimonials and utility staff coordination001000100020 $ 2,700.00 Briefing Prep: coordination call006002008 $ 1,180.00 Draft and final media advisory template002001003 $ 430.00 Monthly follow‐up outreach with news media00830120023 $ 3,080.00 Draft and final media relations pitch calendar (align with social media calendar)00120080020 $ 2,800.00 3.3 ‐ LCRR Communication Monitoring and Evaluation0.50.5364612600128 $ 16,040.00 Draft and final progress report template 00621040022 $ 2,770.00 Draft and final progress reports, up to 12 per year 0020036120068 $ 8,300.00 Draft and final progress dashboard 0.50.510215100038 $ 4,970.00 3.4 ‐ Crisis Communications and On‐Call Support003056030100135 $ 16,550.00 37.518.543169581334100161587 213,990.00$ II. Fee CalculationTaskDescriptionLaborCostExpensesTotal Cost 1 Project Management$19,440.00$0.00$19,440.002 LCR Practices and Project Chartering Workshop$5,670.00$0.00$5,670.003 Public Outreach$188,880.00$0.00 $188,880.00Total$213,990.00$0.00 $213,990.00III. Fee LimitTime and Materials Cost$213,990.00Direct Expenses$3,116.50Total:$217,106.50IV. Notes:1. Rate includes multiplierTotalsDocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB268 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DBCIQ HDR ENGINEERING, INC. 9/30/2022 X X 269 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 4C9F7E80-9D00-48D4-BDC3-D2D11AB384DB 270 Certificate Of Completion Envelope Id: 4C9F7E809D0048D4BDC3D2D11AB384DB Status: Sent Subject: Please DocuSign: City Council Contract 7574-019 Lead & Copper Public Outreach & Crisis Comm Plan Source Envelope: Document Pages: 29 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Crystal Westbrook AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 crystal.westbrook@cityofdenton.com IP Address: 198.49.140.10 Record Tracking Status: Original 9/14/2022 4:00:26 PM Holder: Crystal Westbrook crystal.westbrook@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Crystal Westbrook crystal.westbrook@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 9/14/2022 4:09:28 PM Viewed: 9/14/2022 4:10:31 PM Signed: 9/14/2022 4:11:54 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/14/2022 4:11:57 PM Viewed: 9/14/2022 5:00:15 PM Signed: 9/14/2022 5:00:55 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/14/2022 5:00:59 PM Viewed: 9/16/2022 9:52:44 AM Signed: 9/16/2022 9:55:08 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lucas A. Bathurst luke.bathurst@hdrinc.com Vice President Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 163.116.147.34 Sent: 9/16/2022 9:55:11 AM Resent: 9/30/2022 7:39:44 AM Viewed: 9/30/2022 10:05:39 AM Signed: 9/30/2022 10:14:30 AM Electronic Record and Signature Disclosure: Accepted: 9/16/2022 9:57:43 AM ID: d038f252-0b48-4c3e-96a2-2be3df328f58 271 Signer Events Signature Timestamp Stephen D. Gay stephen.gay@cityofdenton.com Director Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/30/2022 10:14:34 AM Viewed: 9/30/2022 10:21:29 AM Signed: 9/30/2022 10:33:59 AM Electronic Record and Signature Disclosure: Accepted: 9/30/2022 10:21:29 AM ID: edd8c516-8f53-4976-8d61-12a58832e746 Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 10:34:04 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/3/2022 4:45:25 PM ID: 06009068-3307-40c9-a664-74c218a7203f In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/14/2022 4:11:58 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 272 Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 10:34:04 AM Viewed: 10/4/2022 10:03:22 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Annie Bunger annie.bunger@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 8/22/2022 6:39:14 AM ID: 5bb47e57-4b8d-48df-9f93-4ec29141b09a Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 9/14/2022 4:09:28 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 273 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Lucas A. Bathurst, Stephen D. Gay, Rosa Rios, Annie Bunger 274 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. 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Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. 276 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2196,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with Altec Industries,Inc.,through the Sourcewell Cooperative Purchasing Network Contract Number 110421-ALT,for the acquisition of Altec model Digger Derricks,Bucket Trucks,&Utility Equipment for the Electric Distribution,Electric Operations,Traffic,and Parks Departments; authorizing the expenditure of funds therefor;and providing an effective date (File 8130 -awarded to Altec Industries,Inc.,in the five (5)year not-to-exceed amount of $3,000,000.00).The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™277 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Altec Industries, Inc., through the Sourcewell Cooperative Purchasing Network Contract Number 110421-ALT, for the acquisition of Altec model Digger Derricks, Bucket Trucks, & Utility Equipment for the Electric Distribution, Electric Operations, Traffic, and Parks Departments; authorizing the expenditure of funds therefor; and providing an effective date (File 8130 – awarded to Altec Industries, Inc., in the five (5) year not-to-exceed amount of $3,000,000.00). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND This proposal is for a five (5) year contract with Altec Industries to provide City operating departments with various models of Digger Derricks, Bucket Trucks, & Utility Equipment as needed. Vehicles purchased through this contract will be approved Fleet Services replacements and fleet additions approved through the budget process. Fleet Services, in agreement with the Denton Municipal Electric, Parks, and Traffic Departments, has standardized to the Altec brand of aerial equipment for all City of Denton bucket trucks. Altec Industries, Inc. provides factory-trained field service technicians for on-site diagnostics and repair. For liability reasons, Fleet Services technicians do not make repairs on aerial equipment. The requested aerial bucket trucks will be used for the installation of electrical infrastructure within the DME service area and for repair and maintenance of all current City electrical transmission infrastructure by the DME Operations Department. Altec Industries, Inc. sells direct to customers and provides cooperative contract pricing on Sourcewell contract number 110421-ALT. Pricing obtained through Sourcewell Cooperative Purchasing Network has been competitively bid and meets the statutory requirements of Texas Local Government Code 271.102. Year Description Replacement Cost FY 23/24 Electric Distribution ED1359 $300,000 FY 24/25 Electric Operation EO 1585 $820,000 FY 25/26 Electric Operation EO1620 $300,000 FY 25/26 Electric Distribution ED1623 $300,000 Contingency: $1,280,000 Total: $3,000,000 City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 278 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 28, 2020, Council approved the interlocal agreement with Sourcewell (Ordinance 20-197). On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Altec Industries, Inc., for the acquisition of Altec model Digger Derricks, Bucket Trucks, & Utility Equipment for the Electric Distribution, Electric Operations, Traffic, and Parks Departments, in a five (5) year not-to-exceed amount of $3,000,000. PRINCIPAL PLACE OF BUSINESS Altec Industries, Inc. Birmingham, AL ESTIMATED SCHEDULE OF PROJECT This is a five (5) year contract. This Sourcewell contract expires on December 27, 2025. FISCAL INFORMATION These products and services will be funded through the using department’s budget on an as-needed basis. The budgeted amount for these items is $3,000,000. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Ordinance Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Dustin Rolfe, 940-349-8729. Legal point of contact: Marcella Lunn at 940-349-8333. 279 ORDINANCE NO. ___________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH ALTEC INDUSTRIES, INC., THROUGH THE SOURCEWELL COOPERATIVE PURCHASING NETWORK CONTRACT NUMBER 110421-ALT, FOR THE ACQUISITION OF ALTEC MODEL DIGGER DERRICKS, BUCKET TRUCKS, & UTILITY EQUIPMENT FOR THE ELECTRIC DISTRIBUTION, ELECTRIC OPERATIONS, TRAFFIC, AND PARKS DEPARTMENTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 8130 AWARDED TO ALTEC INDUSTRIES, INC., IN THE FIVE (5) YEAR NOT-TO-EXCEED AMOUNT OF $3,000,000.00). WHEREAS, pursuant to Ordinance 20-197, Sourcewell has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law and city ordinances; and WHEREAS, the City Manager, or a designated employee, has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Sourcewell program at less cost than the City would expend if bidding these items individually; and l function; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. the office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 8130 Altec Industries, Inc. $3,000,000.00 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to Sourcewell for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities, and for the specified sums contained in the bid documents and related documents filed with Sourcewell and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the 280 Sourcewell, the City Manager, or their designated representative, is hereby authorized to execute the written contract which shall be referenced herein; provided that the written contract is in accordance with the terms, conditions, specifications, and standards contained in the Proposal submitted to Sourcewell, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ 281 APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 282 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2197,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with KS2 Technologies,Inc.,for the renewal of maintenance and vendor support services for the KS2 Reporting Tool and associated software modules for the Technology Services Department,which is the sole provider of this software,in accordance with Texas Local Government Code Chapter 252.022,which provides that procurement of commodities and services that are available from one source are exempt from competitive bidding,and if over $50,000,shall be awarded by the governing body; providing for the expenditure of funds therefor;and providing an effective date (File 8073-awarded to KS2 Technologies,Inc.,for one (1)year,with the option for four (4)additional one (1)year extensions,in the total five (5) year not-to-exceed amount of $150,000.00). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™283 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with KS2 Technologies, Inc., for the renewal of maintenance and vendor support services for the KS2 Reporting Tool and associated software modules for the Technology Services Department, which is the sole provider of this software, in accordance with Texas Local Government Code Chapter 252.022, which provides that procurement of commodities and services that are available from one source are exempt from competitive bidding, and if over $50,000, shall be awarded by the governing body; providing for the expenditure of funds therefor; and providing an effective date (File 8073-awarded to KS2 Technologies, Inc., for one (1) year, with the option for four (4) additional one (1) year extensions, in the total five (5) year not-to-exceed amount of $150,000.00). INFORMATION/BACKGROUND The City of Denton has been using the KS2 Reporting tool since 2003. It only operates with our JD Edwards (JDE) Enterprise Resource Management financial application and is required as long as we continue to use JDE. This product and its functionality were developed specifically for the City of Denton and there is currently no other third-party product that supports the required functions for the City. The City uses the tool to manage budgets throughout the year. The table below breaks down the estimated annual costs with contingency for the contract total: KS2 Reporting Tool Estimated Annual Expenditures Year 1 23,400.00 Year 2 23,400.00 Year 3 23,400.00 Year 4 23,400.00 Year 5 23,400.00 Contingency 33,000.00 Total: $150,000.00 Section 252.022 of the Local Government Code provides that procurement of sole source commodities and services are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 284 RECOMMENDATION Award with a contract to KS2 Technologies, Inc., as a sole source supplier, for the renewal of maintenance and vendor support services for the KS2 Reporting Tool and associated software modules for the Technology Services Department in an amount not-to-exceed $150,000. PRINCIPAL PLACE OF BUSINESS KS2 Technologies, Inc. Grapevine, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for four (4) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION These services will be funded from Technology Services operating account 830400.7804. Requisitions will be entered on an as-needed basis. The budgeted amount for this item is $150,000. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Ordinance and Contact Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Leisha Meine, 940-349-7823. Legal point of contact: Marcella Lunn at 940-349-8333. 285 ORDINANCE NO. ____________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH KS2 TECHNOLOGIES, INC., FOR THE RENEWAL OF MAINTENANCE AND VENDOR SUPPORT SERVICES FOR THE KS2 REPORTING TOOL AND ASSOCIATED SOFTWARE MODULES FOR THE TECHNOLOGY SERVICES DEPARTMENT, WHICH IS THE SOLE PROVIDER OF THIS SOFTWARE, IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE 252.022, WHICH PROVIDES THAT PROCUREMENT OF COMMODITIES AND SERVICES THAT ARE AVAILABLE FROM ONE SOURCE ARE EXEMPT FROM COMPETITIVE BIDDING, AND IF OVER $50,000, SHALL BE AWARDED BY THE GOVERNING BODY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 8073 AWARDED TO KS2 TECHNOLOGIES, INC., FOR ONE (1) YEAR, WITH THE OPTION FOR FOUR (4) ADDITIONAL ONE (1) YEAR EXTENSIONS, IN THE TOTAL FIVE (5) YEAR NOT-TO- EXCEED AMOUNT OF $150,000.00). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including items that are only available from one source because of patents, copyrights, secret processes, or natural monopolies; films, manuscripts, or books; electricity, gas, water, and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, this procurement was unde function; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above caption; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 8073 KS2 Technologies, Inc. $150,000.00 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including items that are only available from one source because of patents, copyrights, secret processes, or natural monopolies; films, manuscripts, or books; electricity, gas, water, and other utility purchases; 286 captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager, or their designee, is hereby authorized to execute the contract relating to the items specified in Section 1, attached hereto, and the expenditure of funds pursuant to said contract is hereby authorized. SECTION 5. The City Council of the City of Denton hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. ________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ 287 APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 288 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 FILE Custom Integrated JDE Reports Cori Power Not Applicable 8073 289 Contract # 8073 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND KS2 TECHNOLOGIES, INC. (CONTRACT 8073) THIS CONTRACT is made and entered into this date ______________________, by and between KS2 Technologies, Inc., a Texas corporation, whose address is 1020 Mustang Drive, Grapevine, TX 76051 hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide products and/or services in accordance with the City’s document File 8073 – Custom Integrated JDE Reports, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit “A”); (b) City of Denton Standard Terms and Conditions (Exhibit “B”); (c) Insurance Requirements (Exhibit “C”); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D"); (e) Contractor’s Scope of Work Proposal (Exhibit "E"); (f) Form CIQ – Conflict of Interest Questionnaire (Exhibit "F"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as “Contract Documents.” Prohibition on Contracts with Companies Boycotting Israel Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Boycotting Certain Energy Companies Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 290 Contract # 8073 energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. 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. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 291 Contract # 8073 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CONTRACTOR BY: ______________________________ AUTHORIZED SIGNATURE Printed Name: ______________________ Title: _____________________________ __________________________________ PHONE NUMBER __________________________________ EMAIL ADDRESS ___________________________________ TEXAS ETHICS COMMISSION 1295 CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: _______________________________ SARA HENSLEY, CITY MANAGER ATTEST: ROSA RIOS, CITY SECRETARY BY: _______________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _______________________________ THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 danjr@ks2inc.com 972-740-9406 CEO Dan Shinedling, Jr. Technology Services Leisha Meine Chief Technology Officer 2022-942884 292 Contract # 8073 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $150,000. Pricing shall be per Exhibit E attached. 2. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 3. 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 four (4) 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. The Supplier’s request to not renew the contract must be submitted in writing to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. 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. 4. Price Escalation and De-escalation On Supplier’s request in the form stated herein, the City will implement an escalation/de-escalation price adjustment annually based on these special terms. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) or the manufacturer published pricing list. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. The price will be increased or decreased based upon the annual percentage change in the PPI or the percentage change in the manufacturer’s price list. Should the PPI or manufacturer price list change exceed a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted in accordance with the percent change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 293 Contract # 8073 cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre- price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 5. Performance Liquidated Damages The Contractor shall incur contractual payment losses, as initiated by the City for performance that falls short of specified performance standards as outlined below: • Delivery beyond contracted lead times • Performance below contracted levels (services only) The Contractor shall be assessed a one (1%) percent fee each month when any one of the performance standards outlined above are not met in full. The Contractor shall be assessed a two (2%) percent profit fee each month when any two (2) or more performance standards outlined above are not met in full. At the end of each month, the City will review the monthly reports and determine the percentage of penalty to be assessed to the Contractor’s monthly profit margin. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 294 Contract # 8073 Exhibit B Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton’s contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City’s Procurement Department and the Supplier. No Terms and Conditions contained in the seller’s proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City’s premises or on public rights-of-way. 1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City’s name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 295 Contract # 8073 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City’s service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor’s obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City’s facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Contractor that any worker is incompetent, DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 296 Contract # 8073 disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it’s Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department’s Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor’s name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor’s registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor’s invoice. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 297 Contract # 8073 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City’s receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City’s agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor’s obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City’s payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 298 Contract # 8073 the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor’s Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 299 Contract # 8073 writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. Reserved. 21. Reserved. 22. Reserved. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 300 Contract # 8073 conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City’s evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party’s intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’s default, including, without limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 301 Contract # 8073 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor’s subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM . DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 302 Contract # 8073 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage’s and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor’s and all subcontractors’ insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers’ compensation coverage written by the Texas Workers’ Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 303 Contract # 8073 x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days’ written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage’s indicated within the Contract. xiv. The insurance coverage’s specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse effect on the Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor’s Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: In this Section, “Intellectual Property” means all intellectual property rights (including all copyrights, patents, trademarks, trade secrets, industrial designs and know how) and all applications, continuations, extensions, notices, licenses, sublicenses, agreements and registrations thereof in any jurisdiction. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 304 Contract # 8073 CONTRACTOR WILL INDEMNIFY AND HOLD CITY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS ALLEGING THAT THE SERVICES AND ANY INTELLECTUAL PROPERTY FURNISHED BY CONTRACTOR VIOLATE ANY THIRD PARTY'S PATENT, TRADE SECRET OR COPYRIGHT, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARISE FROM CITY'S MODIFICATION OF THE SERVICES OR INTELLECTUAL PROPERTY OR FROM CITY’S USE OF SUCH SERVICES IN EXCESS OF THE PROVISIONS SET OUT IN THIS AGREEMENT. HOWEVER, CONTRACTOR’S LIABILITY HEREUNDER SHALL BE CONDITIONAL UPON CITY PROVIDING CONTRACTOR WITH TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR THREAT THEREOF, AND THE FULL AND EXCLUSIVE AUTHORITY FOR, AND INFORMATION FOR AND ASSISTANCE WITH, THE DEFENSE AND SETTLEMENT THEREOF. IF SUCH CLAIM HAS OCCURRED, OR IN CONTRACTOR’S OPINION IS LIKELY TO OCCUR, CITY AGREES TO PERMIT CONTRACTOR, AT ITS OPTION AND EXPENSE, EITHER TO PROCURE FOR CITY THE RIGHT TO CONTINUE USING THE INTELLECTUAL PROPERTY, OR REPLACE OR MODIFY THE SAME SO THAT IT BECOMES NON-INFRINGING. IF NEITHER OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE, CONTRACTOR MAY IMMEDIATELY TERMINATE ITS OBLIGATIONS (AND CITY’S RIGHTS) UNDER THE AGREEMENT WITH REGARD TO SUCH INTELLECTUAL PROPERTY (IF THE SERVICES ARE DELIVERABLE WITHOUT SUCH INTELLECTUAL PROPERTY) OR TERMINATE THE AGREEMENT IN ITS ENTIRETY (TO THE EXTENT CONTRACTOR IS NOT ABLE TO PROVIDE THE SERVICE WITHOUT SUCH INTELLECTUAL PROPERTY). 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City’s and/or its licensors’ confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, “Confidential Information”). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. Reserved. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City’s prior consent, the fact that the City has entered into the Contract, except to the extent required by law. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 305 Contract # 8073 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 as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker’s compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 306 Contract # 8073 not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. The Vendor shall notify the City’s Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of the company or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director’s resolution approving the action, or an executed merger or acquisition agreement. Failure to do so may adversely impact future invoice payments. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 307 Contract # 8073 Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator’s fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year’s Day (observed) Martin Luther King, Jr. Day Memorial Day Juneteenth Independence Day Labor Day Veterans Day Thanksgiving Friday 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 approved by the City Manager of Denton, Texas or his authorized designee. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 308 Contract # 8073 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph – 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. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 309 Contract # 8073 B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as 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 1978, dealing with issuance of Form W-2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 310 Contract # 8073 with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY LIMITATION OF LIABILITY: Each party and its affiliates’ entire and collective liability arising out of or relating to this Agreement or the performance of the services hereunder, regardless of the form of action, whether in contract, tort, statute or otherwise, shall not exceed one million dollars ($1,000,000). BOTH PARTIES FURTHER AGREE THAT NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER OR ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING NOR FOR ANY CLAIM OR DEMAND AGAINST THEM BY ANY THIRD PARTY. 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 DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 311 Contract # 8073 to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City’s standard terms and conditions 4. Purchase order 5. Supplier terms and conditions DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 312 Contract # 8073 Exhibit C INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ▪ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ▪ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. ▪ Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 313 Contract # 8073 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 314 Contract # 8073 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non-owned autos. [X] Workers’ Compensation Insurance Contractor shall purchase and maintain Workers’ Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’ Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an “occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits 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. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 315 Contract # 8073 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a “blanket” basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 316 Contract # 8073 ATTACHMENT 1 [ ] Workers’ Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 317 Contract # 8073 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 DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 318 Contract # 8073 b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor’s failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 319 Contract # 8073 Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish 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/filinginfo/1295/ 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 Commission’s website within seven business days. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 320 Contract # 8073 EXHIBIT E Contractor’s SOW Proposal DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 321 KS2 Technologies, Inc. 1020 Mustang Drive Grapevine, Texas 76051 (817) 310-1800 (office) (817) 310-1801 (fax) Page 1 of 3 Statement of Work (“SOW”) City of Denton – eXLerated Reports Hosting Project#: 6083918629 This Agreement is between City of Denton (“Client”), 601 East Hickory, Suite A, Denton, Texas 76201 and KS2 Technologies, Inc. (“KS2”), 1020 Mustang Drive, Grapevine, TX, 76051. KS2 will provide services as defined in the Scope of Work section of this document. Both KS2 and the Client agree to all terms and conditions stated herein. Scope of Work Forecasting / Estimated Timeline ● SOW Begin: 9/1/2022 ● SOW End: 8/31/2023 ● SOW Duration: 12 months Scope of Work Definition ● KS2 will license to Client KS2’s eXLerated® reporting platform and application which includes the following: o KS2 will provide a Production hosting instance on the KS2 IBM Cloud (formerly Bluemix) platform. o KS2 will provide a non-Production hosting instance on the KS2 IBM Cloud (formerly Bluemix) platform. o KS2 will provide Tier 2 and Tier 3 Support Services for eXLerated reports application instance hosting incidents or issues up to a maximum of 4 hours per month. Out of Scope Work The following Services are considered “Out of Scope” for this Statement of Work (SOW): 1. Consulting Services / Professional Services associated with application enhancements. KS2 Responsibilities ● KS2 will provide (1) IBM Cloud (formerly Bluemix) application and data hosting instances for Client environments within the Scope of this agreement. ● KS2 will provide setup and testing of the required instances within the Scope of this agreement. ● KS2 will provide Tier 2 Support to Client for validated and confirmed Cloud hosting issues and / or incidents. Client Responsibilities It will be the Client’s responsibility to perform or provide the following as needed for any work to be performed by KS2: ● Client will authorize KS2 to work on behalf of client with third party vendor system (DocuSign, etc.), as needed and when necessary, within 3 days of project start. ● Client will provide timely system access accounts and access required for remote development efforts, including (but not limited to): network (VPN or other) access, remote desktop or server access, hardware or software accounts, security (RSA) tokens required for access, OS administration accounts, and other infrastructure support required ● Client will provide KS2 access to appropriate (DEV, QA and/or PROD) environments and domains. ● Client will perform all required daily backups of critical systems. ● Client will provide timely Internal change management authorization and sign off. ● Client will provide internal and external compliance requirements and/or required security reviews of project artifacts and deliverables as they relate to this project. ● Client will make appropriate personnel available for analysis and other work as required in a timely manner. ● Client will provide a contact list of Client personnel and project stakeholders who may authorize work to be performed. DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 322 KS2 Technologies, Inc. 1020 Mustang Drive Grapevine, Texas 76051 (817) 310-1800 (office) (817) 310-1801 (fax) Page 2 of 3 ● Client will provide remote JDE access for KS2 consultants to all affected systems. ● Client must provide required, valid Client 3rd Party Certificate for SSL configuration for PROD and DEV environments, if required. ● Client must provide KS2 two (2) virtual machines (VM) for Secure Gateway (on premise) hosting. Project Management ● KS2 and Client each agree to designate a project manager who shall be responsible for coordinating each company’s activities. Client’s project manager shall have the authority to approve services on the Client’s behalf. ● KS2’s project manager shall have the sole right to exercise direct control and supervision over the KS2 consultants’ work. ● If the Client’s project manager changes during this SOW, this shall constitute a scope change and may subject Client to a change order request which may increase the overall time and associated fees to deliver. ● KS2’s BEST project governance requires regular steering committee meetings with KS2 and Client stakeholders. These meetings will be scheduled in advance and provide a forum for both Client and KS2 to meet and discuss project budget, project expectations, project signoffs and approvals, and project timelines. Failure to attend these meetings may increase the overall time and associated fees to deliver. Fees ● Total Cost of Client Platform Hosting per month: $900/month ● Total Cost of Application Support per month: $800/month ● Total Cost of Non Production Environment Hosting: $250/month ● Client will be invoiced a total of $1,950 per month Total: $1,950 monthly ● All rates and fees are USD. ● Client agrees to pay for any increases in IBM Cloud hosting cost that is a direct result of increases (by more than 20%) utilization. ● Client agrees to pay for any increases in IBM Cloud hosting cost that is a direct result of additional application environments being requested by Client. Payment Terms and Conditions ● Client will be invoiced annually in advance for application and hosting service fees per the fee schedule, above. The total amount will be due upon acceptance of this agreement for $23,400. ● Client agrees to issue full payment for all hosting services, above, within 15 days of invoice. Intellectual Property Rights It is understood and agreed that KS2 shall own all materials in written, graphic, electronically stored or other form generated or prepared in the course of providing services to Client pursuant to this Agreement. All intellectual property developed prior to this Agreement, during this Agreement or developed outside of this Agreement by KS2, and which is exchanged with Client, shall remain the sole and exclusive property of KS2. Term This agreement will go into effect on September 1, 2022 and will remain active until August 31, 2023. The City and the Supplier shall have the option to renew this contract for an additional four (4) one-year periods. Monthly hours, rates and fees are subject to change if changes are approved by both parties in writing. Termination This SOW may be terminated by either party with 90 days prior written notice. Notice should include the desired termination date (“Termination Date”). KS2 agrees to provide and Client agrees to pay for services performed until the Termination Date. Provide Written Notice To: Email: ekuefler@ks2inc.com DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 323 KS2 Technologies, Inc. 1020 Mustang Drive Grapevine, Texas 76051 (817) 310-1800 (office) (817) 310-1801 (fax) Page 3 of 3 Fax: 817-310-1801 ATTN: Eric Kuefler Authorization In witness whereof, the parties have executed this Agreement by their duly authorized representatives: City of Denton KS2 Technologies, Inc 601 East Hickory, Suite A 1020 Mustang Drive Denton, TX 76201 Grapevine, TX 76051 Signature Date Signature Date Eric Kuefler Name Name President Title Title DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 324 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0Exhibit F KS2 Technologies, Inc. 10/10/2022 X 325 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 2ABFECFF-9A70-4FF1-AA0F-C2966EC722A0 326 Certificate Of Completion Envelope Id: 2ABFECFF9A704FF1AA0FC2966EC722A0 Status: Sent Subject: Please DocuSign: City Council Contract 8073 Custom Integrated JDE Reports Source Envelope: Document Pages: 38 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 10/6/2022 2:47:41 PM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 10/6/2022 3:54:01 PM Viewed: 10/6/2022 3:54:10 PM Signed: 10/6/2022 3:57:39 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/6/2022 3:57:43 PM Viewed: 10/6/2022 4:41:53 PM Signed: 10/6/2022 4:46:04 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/6/2022 4:46:08 PM Viewed: 10/7/2022 9:57:45 AM Signed: 10/7/2022 12:28:57 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Dan Shinedling, Jr. danjr@ks2inc.com CEO Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 47.185.147.210 Sent: 10/7/2022 12:29:03 PM Resent: 10/10/2022 1:33:08 PM Viewed: 10/10/2022 3:10:50 PM Signed: 10/10/2022 3:13:14 PM Electronic Record and Signature Disclosure: Accepted: 10/7/2022 1:24:20 PM ID: 698fc3b0-df6b-4e26-b4e3-2a8d98d51019 327 Signer Events Signature Timestamp Leisha Meine Leisha.Meine@cityofdenton.com Chief Technology Officer City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/10/2022 3:13:19 PM Viewed: 10/10/2022 3:23:05 PM Signed: 10/10/2022 3:23:26 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 10/10/2022 3:23:33 PM Viewed: 10/10/2022 5:16:52 PM Signed: 10/10/2022 5:17:06 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/10/2022 5:17:11 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2022 5:16:40 PM ID: 59eb637f-1676-4a1f-93e9-5663c0617a7e In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/6/2022 3:57:43 PM 328 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered via DocuSign Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 10/10/2022 3:23:31 PM Viewed: 10/11/2022 11:14:04 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign James Barnes Jim.Barnes@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Drew Allen drew.allen@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Stephanie Padgett Stephanie.Padgett@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Cheyenne Defee cheyenne.defee@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/6/2022 3:54:01 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 329 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Dan Shinedling, Jr., Rosa Rios 330 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2198,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the approval of Change Order No.4 to the contract between the City of Denton and 2L Construction,LLC,for the construction of the West Hickory Street Paving,Lighting &Drainage Improvements Project for the City of Denton;providing for the expenditure of funds therefor;and providing an effective date (IFB 7163 -Change Order No.4 in the not-to-exceed amount of $219,543.05 for a total contract award aggregated to $2,139,047.00). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™333 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the approval of Change Order No. 4 to the contract between the City of Denton and 2L Construction, LLC, for the construction of the West Hickory Street Paving, Lighting & Drainage Improvements Project for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (IFB 7163 – Change Order No. 4 in the not-to-exceed amount of $219,543.05 for a total contract award aggregated to $2,139,047.00). INFORMATION/BACKGROUND The West Hickory Street from Welch Street to Carroll Boulevard Project included a reconfiguration and reconstruction of the street to provide space for pedestrian lighting. The project improved pedestrian access along both sides of the street while still maintaining two 11-foot travel lanes, a bike lane on the south side of the street, and parallel parking along the north side of the street. Throughout construction and between November 2020 and September 2021, Change Orders 1, 2, and 3 totaling $52,195.50 combined, were approved following the City’s Procurement Requirements and CIP’s Change Board process. These changes were funded by the project's 5% Contingency Allowance. Change Order No. 1, in the amount of $11,554.00, was executed due to the driveway entrances being in poor condition before construction began and the removal of the entrance sections caused additional cracking and deterioration. Concrete limits were extended to deliver an adequate product. Change Order No. 2, in the amount of $22,740.50, covered an additional sidewalk wall that was needed at 1000, 1004, 1010, and 1022 W. Hickory due to steep grades of adjoining yards. Regarding per plan would have resulted in a slope approaching 45 degrees and adversely impacted the residents. Additionally, the existing sidewalk at the NE corner of Welch and W. Hickory had to be adjusted to meet ADA grades. Water and sewer services along the North side of W. Hickory between Welch and Bernard were shallower than expected and needed to be adjusted due to soil mixing operation. Change Order No. 3, in the amount of $17,901.00, included additional water line lowerings due to shallow water services and relocation of an electric line found to conflict with the curb inlet. Also, the addition of a sidewalk curb at 601 and 607 W. Hickory was needed due to elevation changes at residents’ yards. Additional time was requested due to rain delays between April - June, material delays associated with lime, and pavement delays. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 334 Change Order No. 4 in the total amount of $258,752.50, which includes $39,209.45 of contingency funds, is the final quantity reconciliation for the item over/under runs including the following: ▪ Pavement quantity additions at Hickory Street intersections with Welch, Denton, Williams, and Carroll. ▪ Sidewalk increases at tie-ins at the same intersections. ▪ Addition of a monolithic sidewalk wall is required due to yard slope elevations/grades. ▪ 2 Junction boxes were added to tie in drainage at Carroll and address shallow sewer line penetration at Williams. ▪ Concrete encasement of shallow sanitary sewer added per field discussions. ▪ Additional traffic control and changeable message boards due to added time to project from field changes. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) On July 28, 2020, City Council approved a contract with 2L Construction, LLC, in the not-to-exceed amount of $1,919,503.95 (Ordinance 20-1309). RECOMMENDATION Award Change Order No. 4 with 2L Construction, LLC, for the construction of the West Hickory Street Paving, Lighting & Drainage Improvements Project for the City of Denton, in a not-to-exceed amount of $219,543.05, for a total amended contract amount of $2,139,047. PRINCIPAL PLACE OF BUSINESS 2L Construction, LLC Rhome, TX ESTIMATED SCHEDULE OF PROJECT This project is complete. All infrastructure is installed and the street is in use. FISCAL INFORMATION These items will be funded from project account 350463467.1360.40100. Purchase Order #194268 will be revised to include this final order in the amount of $258,752.50, increasing the total Purchase Order amount to $2,139,047. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Original Ordinance and Contract Exhibit 3: Change Order Nos. 1 - 3 Exhibit 4: LLC Members Exhibit 5: Ordinance and Change Order No. 4 Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager 335 For information concerning this project, contact: Kyle Pedigo, 940-349-8425. Legal point of contact: Marcella Lunn at 940-349-8339. 336 ORDINANCE NO.20-1309 AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH 2L CONSTRUCTION, LLC, FOR THE CONSTRUCTION OF THE WEST HICKORY STREET PAVING, LIGHTING & DRAINAGE IMPROVEMENTS PROJECT FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROViDrNG AN EFFECTIVE DATE (IFB 7163 – AWARDED TO 2L CONSTRUCTION, LLC, IN THE NOT-TO-EXCEED AMOUNT OF $1,919,503.95). WHEREAS, the City has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager, or a designated employee, has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the materials, equipment, supplies, or services, as described in the "Bid Invitations", "Bid Proposals" or plans and specifications on file in the Office of the City’s Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER VENDOR AMOUNT 7163 2L Construction, LLC $1,919,503.95 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager, or his designated representative, is hereby authorized to execute a written contract in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents and to extend that contract as determined to be advantageous to the City of Denton. 337 SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6 approval. The motion to This ordinance shall become effective immediately upon its passage and ,pp„„ thi, „di„,„„ w„ m,d, by’?U \ M C\tZe<and the ordinance was passed and approved byhmseconded by h &&\\ the following vote n - a Aye Nay Abstain Absent Mayor Chris Watts: Gerard Hudspeth, District 1 : Keely G. Briggs, District 2: Jesse Davis, District 3 : John Ryan, District 4: Deb Armintor, At Large Place 5 : Paul Meltzer, At Large Place 6: ./ +/ +-7 +- 338 PASSED AND APPROVED this the 2020 ATTEST: ROSA RIOS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AARON LEAL, ('ITY ATTORNEY Z.'.„.„JBY: 339 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance $!! " "# !& ! % #" # $ & 340 00 52 43 - 1 Agreement Page 1 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 SECTION 00 52 43 1 AGREEMENT 2 THIS AGREEMENT, authorized on ______________is made by and between the City of Denton, 3 a Texas home rule municipality, acting by and through its duly authorized City Manager, (“City”), 4 and 2L Construction, L.L.C., authorized to do business in Texas, acting by and through its duly 5 authorized representative, (“Contractor”). 6 City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: 7 Article 1. WORK 8 Contractor shall complete all Work as specified or indicated in the Contract Documents for the 9 Project identified herein. 10 Article 2. PROJECT 11 The project for which the Work under the Contract Documents may be the whole or only a part is 12 generally described as follows: 13 West Hickory St. Paving, Lighting & Drainage Improvements 14 Contract No: 7163 15 Article 3. CONTRACT PRICE 16 City agrees to pay Contractor for performance of the Work in accordance with the Contract 17 Documents an amount, in current funds, of One million eight hundred twenty-eight thousand 18 ninety-nine Dollars ($1,828,099). At the sole option of the City, five (5) percent contingency in 19 the amount of Ninety-one thousand four hundred and four Dollars and 95/100 cents ($91,404.95) 20 may be used for a total not-to-exceed amount of One million nine hundred and nineteen thousand 21 five hundred three Dollars and 95/100 cents ($1,919,503.95). 22 23 Article 4. CONTRACT TIME 24 4.1 Final Acceptance. 25 The Work will be complete for Final Acceptance within 270 days after the date when the 26 Contract Time commences to run, as provided in Paragraph 2.03 of the General Conditions, 27 plus any extension thereof allowed in accordance with Article 12 of the General Conditions. 28 4.2 Liquidated Damages 29 Contractor recognizes that time is of the essence for completion of Milestones, if any, and 30 to achieve Final Acceptance of the Work and City will suffer financial loss if the Work is 31 not completed within the time(s) specified in Paragraph 4.1 above. The Contractor also 32 recognizes the delays, expense and difficulties involved in proving in a legal proceeding, 33 the actual loss suffered by the City if the Work is not completed on time. Accordingly, 34 instead of requiring any such proof, Contractor agrees that as liquidated damages for delay 35 (but not as a penalty), Contractor shall pay City One Thousand Dollars ($1,000.00) for 36 each day that expires after the time specified in Paragraph 4.1 for Final Acceptance until 37 the City issues the Final Letter of Acceptance. 38 341 00 52 43 - 2 Agreement Page 2 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 Article 5. CONTRACT DOCUMENTS 1 5.1 CONTENTS: 2 A. The Contract Documents which comprise the entire agreement between City and 3 Contractor concerning the Work consist of the following: 4 1. This Agreement. 5 2. Attachments to this Agreement: 6 a. Bid Form 7 1) Proposal Form 8 2) Vendor Compliance to State Law Non-Resident Bidder 9 b. Current Prevailing Wage Rate Table 10 c. Worker’s Compensation Affidavit 11 d. General Conditions. 12 e. Supplementary Conditions. 13 3. The following located in File 7163 at: 14 https://lfpubweb.cityofdenton.com/MaterialsManagement/Browse.aspx?startid=1915 &row=1&dbid=0: 16 a. Specifications described in the Table of Contents of the Project’s Contract 17 Documents. 18 b. North Central Texas Council of Governments Standard Specifications for Public 19 Works Construction – Fourth Edition, Divisions 200-800, and as amended by 20 City, and described in the Table of Contents of the Project’s Contract Documents. 21 c. Drawings. 22 d. Addenda. 23 e. Documentation submitted by Contractor prior to Notice of Award. 24 4. The following which shall be issued after the Effective Date and delivered to the City 25 within ten (10) days of the Effective Date and before beginning Work: 26 a. Payment Bond 27 b. Performance Bond 28 c. Maintenance Bond 29 d. Power of Attorney for the Bonds 30 e. Form 1295 – Certificate of Interested Parties (email to purchasing) 31 f. Insurance Certificate 32 5. The following which may be delivered or issued after the Effective Date and, if 33 issued, become an incorporated part of the Contract Documents: 34 a. Notice to Proceed. 35 b. Field Orders. 36 c. Change Orders. 37 d. Letter of Final Acceptance. 38 39 40 342 00 52 43 - 3 Agreement Page 3 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 Article 6. INDEMNIFICATION 1 6.1 Contractor covenants and agrees to indemnify, hold harmless and defend, at its own 2 expense, the city, its officers, servants and employees, from and against any and all 3 claims arising out of, or alleged to arise out of, the work and services to be performed 4 by the contractor, its officers, agents, employees, subcontractors, licensees or invitees 5 under this contract. This indemnification provision is specifically intended to operate 6 and be effective even if it is alleged or proven that all or some of the damages being 7 sought were caused, in whole or in part, by any act, omission or negligence of the city. 8 This indemnity provision is intended to include, without limitation, indemnity for any 9 and all costs, expenses and legal fees incurred by the city in defending against such 10 claims and causes of actions. 11 12 6.2 Contractor covenants and agrees to indemnify and hold harmless, at its own expense, 13 the city, its officers, servants and employees, from and against any and all loss of, 14 damage to, or destruction of, property of the city, arising out of, or alleged to arise out 15 of, the work and services to be performed by the contractor, its officers, agents, 16 employees, subcontractors, licensees or invitees under this contract. This 17 indemnification provision is specifically intended to operate and be effective even if it is 18 alleged or proven that all or some of the damages being sought were caused, in whole or 19 in part, by any act, omission or negligence of the city. 20 21 Article 7. MISCELLANEOUS 22 7.1 Terms. 23 Terms used in this Agreement which are defined in Article 1 of the General Conditions will 24 have the meanings indicated in the General Conditions. 25 7.2 Assignment of Contract. 26 This Agreement, including all of the Contract Documents may not be assigned by the 27 Contractor without the advanced express written consent of the City. 28 7.3 Successors and Assigns. 29 City and Contractor each binds itself, its partners, successors, assigns and legal 30 representatives to the other party hereto, in respect to all covenants, agreements and 31 obligations contained in the Contract Documents. 32 7.4 Severability. 33 Any provision or part of the Contract Documents held to be unconstitutional, void or 34 unenforceable by a court of competent jurisdiction shall be deemed stricken, and all 35 remaining provisions shall continue to be valid and binding upon City and Contractor. 36 7.5 Governing Law and Venue. 37 This Agreement, including all of the Contract Documents is performable in the State of 38 Texas. Venue shall be Denton County, Texas, or the United States District Court for the 39 Eastern District of Texas, Sherman Division. 40 7.6 Authority to Sign. 41 Contractor shall attach evidence of authority to sign Agreement if signed by someone other 42 than the duly authorized signatory of the Contractor. 43 343 00 52 43 - 4 Agreement Page 4 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 1 7.7 Prohibition On Contracts With Companies Boycotting Israel. 2 Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government 3 Code, the City is prohibited from entering into a contract with a company for goods or 4 services unless the contract contains a written verification from the company that it: (1) 5 does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 6 The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms 7 in Section 808.001 of the Texas Government Code. By signing this contract, Contractor 8 certifies that Contractor’s signature provides written verification to the City that 9 Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of 10 the contract. 11 12 7.8 Immigration Nationality Act. 13 Contractor shall verify the identity and employment eligibility of its employees who perform 14 work under this Agreement, including completing the Employment Eligibility Verification 15 Form (I-9). Upon request by City, Contractor shall provide City with copies of all I-9 forms 16 and supporting eligibility documentation for each employee who performs work under this 17 Agreement. Contractor shall adhere to all Federal and State laws as well as establish 18 appropriate procedures and controls so that no services will be performed by any Contractor 19 employee who is not legally eligible to perform such services. CONTRACTOR SHALL 20 INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, 21 LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY 22 CONTRACTOR, CONTRACTOR’S EMPLOYEES, SUBCONTRACTORS, 23 AGENTS, OR LICENSEES. City, upon written notice to Contractor, shall have the right 24 to immediately terminate this Agreement for violations of this provision by Contractor. 25 26 7.9 No Third-Party Beneficiaries. 27 This Agreement gives no rights or benefits to anyone other than the City and the Contractor 28 and there are no third-party beneficiaries. 29 30 31 344 00 52 43 - 5 Agreement Page 5 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 7.10 No Cause of Action Against Engineer. 1 Contractor, its subcontractors and equipment and materials suppliers on the Project or their 2 sureties, shall maintain no direct action against the Engineer, its officers, employees, and 3 subcontractors, for any claim arising out of, in connection with, or resulting from the engineering 4 services performed. Only the City will be the beneficiary of any undertaking by the Engineer. 5 The presence or duties of the Engineer's personnel at a construction site, whether as on-site 6 representatives or otherwise, do not make the Engineer or its personnel in any way 7 responsible for those duties that belong to the City and/or the City's Contractors or other 8 entities, and do not relieve the Contractors or any other entity of their obligations, duties, and 9 responsibilities, including, but not limited to, all construction methods, means, techniques, 10 sequences, and procedures necessary for coordinating and completing all portions of the 11 construction work in accordance with the Contract Documents and any health or safety 12 precautions required by such construction work. The Engineer and its personnel have no 13 authority to exercise any control over any construction contractor or other entity or their 14 employees in connection with their work or any health or safety precautions. 15 16 SIGNATURE PAGE TO FOLLOW 17 18 345 00 52 43 - 6 Agreement Page 6 of 6 CITY OF DENTON 7163 W. Hickory St. Paving, Lighting, & STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Drainage Improvements Revised September 20, 2018 IN WITNESS WHEREOF, City and Contractor have each executed this Agreement to be effective 1 as of the date subscribed by the City’s designated City Manager (“Effective Date”). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 ATTEST: 37 ROSA RIOS, CITY SECRETARY 38 39 40 _______________________________________ 41 42 43 APPROVED AS TO LEGAL FORM: 44 AARON LEAL, CITY ATTORNEY 45 46 _______________________________________ 47 CITY OF DENTON BY: ___________________________________ CITY MANAGER CONTRACTOR 2L CONSTRUCTION, L.L.C. BY: ___________________________________ AUTHORIZED AGENT _______________________________________ NAME _______________________________________ TITLE _______________________________________ PHONE NUMBER _______________________________________ EMAIL ADDRESS THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT "# $ " #" ! #$"%$ $& " !$ " $# #$# 346 347 348 349 350 351 352 353 "General Decision Number: TX20200018 01/03/2020 Superseded General Decision Number: TX20190018 State: Texas Construction Type: Heavy Counties: Collin, Dallas, Denton, Ellis, Kaufman and Rockwall Counties in Texas. Water and Sewer Lines/Utilities (Including Related Tunneling Where the Tunnel is 48"" or Less in Diameter) Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.80 for calendar year 2020 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.80 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2020. If this contract is covered by the EO and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must pay workers in that classification at least the wage rate determined through the conformance process set forth in 29 CFR 5.5(a)(1)(ii) (or the EO minimum wage rate, if it is higher than the conformed wage rate). The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections 354 under the EO is available at www.dol.gov/whd/govcontracts. Modification Number Publication Date 0 01/03/2020 * PLUM0100-002 11/01/2017 Rates Fringes Plumbers and Pipefitters.........$ 30.84 11.51 ---------------------------------------------------------------- SUTX1991-004 09/23/1991 Rates Fringes Laborers: Common......................$ 7.25 Utility.....................$ 7.467 Pipelayer........................$ 7.828 Power equipment operators: Backhoe.....................$ 10.804 Crane.......................$ 10.942 Front End Loader............$ 9.163 Tunneling Machine (48"" or less).......................$ 9.163 TRUCK DRIVER.....................$ 8.528 ---------------------------------------------------------------- WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. ================================================================ Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide 355 employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). ---------------------------------------------------------------- The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of ""identifiers"" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAVG"" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 356 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the ""SU"" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. 357 ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 358 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. ================================================================ END OF GENERAL DECISION " 359 "General Decision Number: TX20200025 01/03/2020 Superseded General Decision Number: TX20190025 State: Texas Construction Type: Highway Counties: Archer, Callahan, Clay, Collin, Dallas, Delta, Denton, Ellis, Grayson, Hunt, Johnson, Jones, Kaufman, Parker, Rockwall, Tarrant and Wise Counties in Texas. HIGHWAY CONSTRUCTION PROJECTS (excluding tunnels, building structures in rest area projects & railroad construction; bascule, suspension & spandrel arch bridges designed for commercial navigation, bridges involving marine construction; and other major bridges). Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.80 for calendar year 2020 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.80 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2020. If this contract is covered by the EO and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must pay workers in that classification at least the wage rate determined through the conformance process set forth in 29 CFR 5.5(a)(1)(ii) (or the EO minimum wage rate, if it is higher than the conformed wage rate). The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject 360 to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Modification Number Publication Date 0 01/03/2020 * SUTX2011-007 08/03/2011 Rates Fringes CONCRETE FINISHER (Paving and Structures)......................$ 14.12 ELECTRICIAN......................$ 19.80 FORM BUILDER/FORM SETTER Paving & Curb...............$ 13.16 Structures..................$ 13.84 LABORER Asphalt Raker...............$ 12.69 Flagger.....................$ 10.06 Laborer, Common.............$ 10.72 Laborer, Utility............$ 12.32 Pipelayer...................$ 13.24 Work Zone Barricade Servicer....................$ 11.68 POWER EQUIPMENT OPERATOR: Asphalt Distributor.........$ 15.32 Asphalt Paving Machine......$ 13.99 Broom or Sweeper............$ 11.74 Concrete Pavement Finishing Machine...........$ 16.05 Concrete Saw................$ 14.48 Crane Operator, Lattice Boom 80 Tons or Less........$ 17.27 Crane Operator, Lattice 361 Boom over 80 Tons...........$ 20.52 Crane, Hydraulic 80 Tons or Less.....................$ 18.12 Crawler Tractor.............$ 14.07 Excavator, 50,000 pounds or less.....................$ 17.19 Excavator, over 50,000 pounds......................$ 16.99 Foundation Drill , Truck Mounted.....................$ 21.07 Foundation Drill, Crawler Mounted.....................$ 17.99 Front End Loader 3 CY or Less........................$ 13.69 Front End Loader, over 3 CY.$ 14.72 Loader/Backhoe..............$ 15.18 Mechanic....................$ 17.68 Milling Machine.............$ 14.32 Motor Grader, Fine Grade....$ 17.19 Motor Grader, Rough.........$ 16.02 Pavement Marking Machine....$ 13.63 Reclaimer/Pulverizer........$ 11.01 Roller, Asphalt.............$ 13.08 Roller, Other...............$ 11.51 Scraper.....................$ 12.96 Small Slipform Machine......$ 15.96 Spreader Box................$ 14.73 Servicer.........................$ 14.58 Steel Worker (Reinforcing).......$ 16.18 TRUCK DRIVER Lowboy-Float................$ 16.24 Off Road Hauler.............$ 12.25 Single Axle.................$ 12.31 Single or Tandem Axle Dump Truck.......................$ 12.62 Tandem Axle Tractor with Semi Trailer................$ 12.86 Transit-Mix.................$ 14.14 WELDER...........................$ 14.84 ---------------------------------------------------------------- 362 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. ================================================================ Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). ---------------------------------------------------------------- The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of ""identifiers"" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or 363 ""UAVG"" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the ""SU"" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage 364 determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: 365 Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. ================================================================ END OF GENERAL DECISION " 366 367 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLEOF CONTENTS Page Article 1 – Definitions and Terminology..........................................................................................................1 1.01 Defined Terms...............................................................................................................................1 1.02 Terminology..................................................................................................................................6 Article 2 – Preliminary Matters.........................................................................................................................7 2.01 Copies of Documents....................................................................................................................7 2.02 Commencement of Contract Time; Notice to Proceed................................................................7 2.03 Starting the Work..........................................................................................................................7 2.04 Before Starting Construction........................................................................................................7 2.05 Preconstruction Conference..........................................................................................................8 2.06 Public Meeting..............................................................................................................................8 2.07 Initial Acceptance of Schedules....................................................................................................8 2.08 Electronic Submittals....................................................................................................................8 Article 3 – Contract Documents: Intent, Amending, Reuse............................................................................8 3.01 Intent..............................................................................................................................................8 3.02 Reference Standards......................................................................................................................9 3.03 Reporting and Resolving Discrepancies.......................................................................................9 3.04 Amending and Supplementing Contract Documents.................................................................10 3.05 Reuse of Documents...................................................................................................................10 3.06 Electronic Data............................................................................................................................11 Article 4 – Availability of Lands; Subsurface and Physical Conditions; Hazardous Environmental Conditions; Reference Points...........................................................................................................11 4.01 Availability of Lands ..................................................................................................................11 4.02 Subsurface and Physical Conditions ..........................................................................................12 4.03 Differing Subsurface or Physical Conditions.............................................................................12 4.04 Underground Facilities ...............................................................................................................13 4.05 Hazardous Environmental Condition at Site..............................................................................14 Article 5 – Bonds and Insurance .....................................................................................................................15 5.01 Licensed Sureties and Insurers...................................................................................................15 5.02 Performance, Payment, and Maintenance Bonds.......................................................................15 5.03 Certificates of Insurance.............................................................................................................16 5.04 Contractor’s Insurance................................................................................................................18 5.05 Acceptance of Bonds and Insurance; Option to Replace...........................................................19 Article 6 – Contractor’s Responsibilities........................................................................................................19 6.01 Supervision and Superintendence...............................................................................................19 368 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 6.02 Labor; Working Hours................................................................................................................19 6.03 Services, Materials, and Equipment...........................................................................................20 6.04 Project Schedule..........................................................................................................................20 6.05 Substitutes and “Or-Equals”.......................................................................................................21 6.06 Concerning Subcontractors, Suppliers, and Others....................................................................23 6.07 Wage Rates..................................................................................................................................24 6.08 Patent Fees and Royalties...........................................................................................................25 6.09 Permits and Utilities....................................................................................................................26 6.10 Laws and Regulations.................................................................................................................26 6.11 Taxes ...........................................................................................................................................27 6.12 Use of Site and Other Areas .......................................................................................................27 6.13 Record Documents......................................................................................................................28 6.14 Safety and Protection..................................................................................................................29 6.15 Safety Representative..................................................................................................................29 6.16 Hazard Communication Programs .............................................................................................30 6.17 Emergencies and/or Rectification...............................................................................................30 6.18 Submittals....................................................................................................................................30 6.19 Continuing the Work...................................................................................................................31 6.20 Contractor’s General Warranty and Guarantee..........................................................................32 6.21 Indemnification .........................................................................................................................32 6.22 Delegation of Professional Design Services ..............................................................................33 6.23 Right to Audit..............................................................................................................................34 6.24 Nondiscrimination.......................................................................................................................34 Article 7 – Other Work at the Site...................................................................................................................34 7.01 Related Work at Site...................................................................................................................34 7.02 Coordination................................................................................................................................35 Article 8 – City’s Responsibilities...................................................................................................................35 8.01 Communications to Contractor...................................................................................................35 8.02 Furnish Data................................................................................................................................35 8.03 Pay When Due ............................................................................................................................35 8.04 Lands and Easements; Reports and Tests...................................................................................36 8.05 Change Orders.............................................................................................................................36 8.06 Inspections, Tests, and Approvals..............................................................................................36 8.07 Limitations on City’s Responsibilities .......................................................................................36 8.08 Undisclosed Hazardous Environmental Condition....................................................................36 8.09 Compliance with Safety Program...............................................................................................36 Article 9 – City’s Observation Status During Construction...........................................................................36 9.01 City’s Project Manager ……......................................................................................................36 9.02 Visits to Site................................................................................................................................37 9.03 Authorized Variations in Work ..................................................................................................37 9.04 Rejecting Defective Work ..........................................................................................................37 9.05 Determinations for Work Performed..........................................................................................37 9.06 Decisions on Requirements of Contract Documents and Acceptability of Work.....................38 369 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Article 10 – Changes in the Work; Claims; Extra Work................................................................................38 10.01 Authorized Changes in the Work...............................................................................................38 10.02 Unauthorized Changes in the Work ...........................................................................................38 10.03 Execution of Change Orders.......................................................................................................38 10.04 Extra Work..................................................................................................................................38 10.05 Notification to Surety..................................................................................................................39 10.06 Contract Claims Process.............................................................................................................39 Article 11 – Cost of the Work; Allowances; Unit Price Work; Plans Quantity Measurement......................40 11.01 Cost of the Work.........................................................................................................................40 11.02 Allowances..................................................................................................................................43 11.03 Unit Price Work..........................................................................................................................43 11.04 Plans Quantity Measurement......................................................................................................45 Article 12 – Change of Contract Price; Change of Contract Time.................................................................45 12.01 Change of Contract Price............................................................................................................45 12.02 Change of Contract Time............................................................................................................46 12.03 Delays..........................................................................................................................................47 Article 13 – Tests and Inspections; Correction, Removal or Acceptance of Defective Work......................47 13.01 Notice of Defects ........................................................................................................................47 13.02 Access to Work...........................................................................................................................47 13.03 Tests and Inspections..................................................................................................................47 13.04 Uncovering Work........................................................................................................................49 13.05 City May Stop the Work.............................................................................................................49 13.06 Correction or Removal of Defective Work................................................................................49 13.07 Correction Period........................................................................................................................50 13.08 Acceptance of Defective Work...................................................................................................51 13.09 City May Correct Defective Work.............................................................................................51 Article 14 – Payments to Contractor and Completion....................................................................................52 14.01 Schedule of Values......................................................................................................................52 14.02 Progress Payments......................................................................................................................52 14.03 Contractor’s Warranty of Title...................................................................................................54 14.04 Partial Utilization........................................................................................................................54 14.05 Final Inspection...........................................................................................................................55 14.06 Final Acceptance.........................................................................................................................55 14.07 Final Payment..............................................................................................................................55 14.08 Final Completion Delayed and Partial Retainage Release ........................................................56 14.09 Waiver of Claims........................................................................................................................56 Article 15 – Suspension of Work and Termination........................................................................................57 15.01 City May Suspend Work.............................................................................................................57 15.02 City May Terminate for Cause...................................................................................................57 15.03 City May Terminate For Convenience.......................................................................................59 370 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Article 16 – Dispute Resolution......................................................................................................................61 16.01 Methods and Procedures.............................................................................................................61 Article 17 – Miscellaneous..............................................................................................................................62 17.01 Giving Notice..............................................................................................................................62 17.02 Computation of Times................................................................................................................62 17.03 Cumulative Remedies.................................................................................................................62 17.04 Survival of Obligations...............................................................................................................63 17.05 Headings......................................................................................................................................63 371 00 72 00 -1 GENERAL CONDITIONS Page 1 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 ARTICLE 1 – DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in these General Conditions or in other Contract Documents, the terms listed below have the meanings indicated which are applicable to both the singular and plural thereof, and words denoting gender shall include the masculine, feminine and neuter. Said terms are generally capitalized or written in italics, but not always. When used in a context consistent with the definition of a listed-defined term, the term shall have a meaning as defined below whether capitalized or italicized or otherwise. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1.Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2.Agreement—The written instrument which is evidence of the agreement between City and Contractor covering the Work. 3.Application for Payment—The form acceptable to City which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4.Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5.Award – Authorization by the City Council for the City to enter into an Agreement. 6.Bid—The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 7.Bidder—The individual or entity who submits a Bid directly to City. 8.Bidding Documents—The Bidding Requirements and the proposed Contract Documents (including all Addenda). 9.Bidding Requirements—The advertisement or Invitation to Bid, Instructions to Bidders, Bid security of acceptable form, if any, and the Bid Form with any supplements. 10.Business Day –A business day is defined as a day that the City conducts normal business, generally Monday through Friday, except for federal or state holidays observed by the City. 11.Calendar Day – A day consisting of 24 hours measured from midnight to the next midnight. 372 00 72 00 -1 GENERAL CONDITIONS Page 2 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 12.Change Order—A document, which is prepared and approved by the City, which is signed by Contractor and City and authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Time, issued on or after theEffectiveDate of the Agreement. 13.City—The City of Denton is a Texas home-rule municipal corporation acting by its City Council through its City Manager or his designee. 14.City Attorney – The officially appointed City Attorney of the City of Denton, Texas, or his duly authorized representative. 15.City Council - The duly elected and qualified governing body of the City of Denton, Texas. 16.City Manager – The officially appointed and authorized City Manager of the City of Denton, Texas, or his duly authorized representative. 17.Contract Claim—A demand or assertion by City or Contractor seeking an adjustment of Contract Price or Contract Time, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Contract Claim. 18.Contract—The entire and integrated written document between the City and Contractor concerning the Work. The Contract contains the Agreement and all Contract Documents and supersedes prior negotiations, representations, or agreements, whether written or oral. 19.Contract Documents—Those items so designated in the Agreement. All items listed in the Agreement are Contract Documents. Approved Submittals, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 20.Contract Price—The moneys payable by City to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subjecttothe provisions of Paragraph 11.03 in the case of Unit Price Work). 21.Contract Time—The number of days or the dates stated in the Agreement to: (i) achieve Milestones, if any and (ii) complete the Work so that it is ready for Final Acceptance. 22.Contractor—The individual or entity with whom City has entered into the Agreement. 23.Cost of the Work—See Paragraph 11.01 of these General Conditions for definition. 373 00 72 00 -1 GENERAL CONDITIONS Page 3 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 24.Damage Claims –A demand for money or services arising from the Project or Site from a third party, City or Contractor exclusive of a Contract Claim. 25.Day or day – A day, unless otherwise defined, shall mean a Calendar Day. 26.Drawings—That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Submittals are not Drawings as so defined. 27.Effective Date of the Agreement—The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 28.Engineer—The licensed professional engineer or engineering firm registered in the State of Texas performing professional services for the City. 29.Extra Work –Additional work made necessary by changes or alterations of the Contract Documents or quantities; or for other reasons for which no prices are providedinthe Contract Documents. Extra work shall be part of the Work. 30.Field Order —A written order issued by City which requires changes in the Work but which does not involve a change in the Contract Price, Contract Time, or the intent of the Engineer. 31.Final Acceptance –The written notice given by the City to the Contractor that the Work specified in the Contract Documents has been completed to the satisfactionoftheCity. 32.Final Inspection –Inspection carried out by the City to verify that the Contractor has completed the Work, and each and every part or appurtenance thereof, fully, entirely, and in conformance with the Contract Documents. 33.General Requirements—Sections of Division 1 of the Contract Documents. 34.Hazardous Environmental Condition —The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, or other materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto. 35.Hazardous Waste—Hazardous waste is defined as any solid waste listed as hazardous or possesses one or more hazardous characteristics as defined in the federal waste regulations, as amended from time to time. 36.Incidental –Work items that the Contractor is not paid for directly, but costs for which are included under the various bid items of the Project. 374 00 72 00 -1 GENERAL CONDITIONS Page 4 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 37.Laws and Regulations—Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 38.Liens—Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 39.Major Item –An Item of work included in the Contract Documents that has a total cost equal to or greater than 5% of the original Contract Price or $25,000 whichever is less. 40.Milestone—A principal event specified in the Contract Documents relating to an intermediate Contract Time prior to Final Acceptance of the Work. 41.Notice of Award—The written notice by City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, City will sign and deliver the Agreement. 42.Notice to Proceed—A written notice given by City to Contractor fixing the date on which the Contract Time will commence to run and on which Contractor shall start to perform the Work specified in Contract Documents. 43.PCBs—Polychlorinated biphenyls. 44.Petroleum—Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Waste and crude oils. 45.Plans –See definition of Drawings. 46.Project Schedule—A schedule, prepared and maintained by Contractor, in accordance with the General Requirements, describing the sequence and duration of the activities comprising the Contractor’s plan to accomplish the Work within the Contract Time. 47.Project—The Work to be performed under the Contract Documents. 48.Project Manager —The authorized representative of the City who will be assigned to the Project. 49.Project Manual – The documentary information prepared for bidding and furnishing the Work. A listing of the contents of the Project Manual is contained in its Table of Contents. 50.Public Meeting –An announced meeting conducted by the City to facilitate public participation and to assist the public in gaining an informed view of the Project. 375 00 72 00 -1 GENERAL CONDITIONS Page 5 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 51.Radioactive Material—Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 52.Regular Working Hours –Excluding legal holidays, regular working hours shall be Monday thru Friday between 6:00 a.m. and 8:30 p.m. from June 1 to September 30 and between 7:00 a.m. and 8:30 p.m. from October 1 to May 31. 53.Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 54.Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 55.Schedule of Values—A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor’s Applications for Payment. 56.Site—Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights-of-way, permits, and easements for access thereto, and such other lands furnished by City which are designated for the use of Contractor. 57.Specifications—That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. Specifications may be specifically made a part of the Contract Documents by attachment or,if not attached, may be incorporated by reference as indicated in the Table of Contents (Division000000) of each Project. 58.Subcontractor—An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 59.Submittals—All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 60.Subsidiary –See definition of Incidental. 61.Successful Bidder—The Bidder submitting the lowest and most responsive Bid to whom City makes an Award. 62.Superintendent –The representative of the Contractor who is available at all times and able to receive instructions from the City and to act for the Contractor. 376 00 72 00 -1 GENERAL CONDITIONS Page 6 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 63.Supplementary Conditions—That part of the Contract Documents which amends or supplements these General Conditions. 64.Supplier—A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 65.Underground Facilities—All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including but not limited to, those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 66.Unit Price Work—See Paragraph 11.03 of these General Conditions for definition. 67.Weekend Working Hours –Hours between 8:00 a.m. and 8:30 p.m., Saturday, and between 1:00 p.m. and 8:30 p.m. Sunday or legal holiday, as approved in advance by the City. 68.Work—The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction including any Change Order or Field Order, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 69.Working Day – A working day is defined as a day, not including Saturdays, Sundays, or legal holidays authorized by the City for contract purposes, in which weather or other conditions not under the control of the Contractor will permit the performance of the principal unit of work underway for a continuous period of not less than 7 hours between 7 a.m.and 8 p.m. 1.02 Terminology A. The words and terms discussed in Paragraph 1.02.B through E are not defined but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning. B.Intent of Certain Terms or Adjectives: 1. The Contract Documents include the terms “as allowed,” “as approved,” “as ordered,” “as directed” or terms of like effect or import to authorize an exercise of judgment by City. In addition, the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” “satisfactory,” or adjectives of like effect or import are used to describe an action or determination of City as to the Work. It is intended that such exercise of professional judgment, action, or determination will be solely to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). 377 00 72 00 -1 GENERAL CONDITIONS Page 7 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 C.Defective: 1. The word “defective,” when modifying the word “Work,” refers to Work thatis unsatisfactory, faulty, or deficient in that it: a. does not conform to the Contract Documents; or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or c. has been damaged prior to City’s written acceptance. D.Furnish, Install, Perform, Provide: 1. The word “Furnish” or the word “Install” or the word “Perform” or the word “Provide” or the word “Supply,” or any combination or similar directive or usage thereof, shall mean furnishing and incorporating in the Work including all necessary labor, materials, equipment, and everything necessary to perform the Work indicated, unless specifically limited in the context used. E. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 – PRELIMINARY MATTERS 2.01 Copies of Documents City shall furnish to Contractor one (1) original executed copy and one (1)electronic copy of the Contract Documents, and three (3) additional copies of the Drawings. Additional copies will be furnished upon request at the cost of reproduction. 2.02 Commencement of Contract Time; Notice to Proceed The Contract Time will commence to run on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Agreement. 2.03 Starting the Work Contractor shall start to perform the Work on the date when the Contract Time commences to run. No Work shall be done at the Site prior to the date on which the Contract Time commences to run. 2.04 Before Starting Construction Baseline Schedules:Submit in accordance with the Contract Documents, and prior to starting the Work. 378 00 72 00 -1 GENERAL CONDITIONS Page 8 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 2.05 Preconstruction Conference Before any Work at the Site is started, the Contractor shall attend a Preconstruction Conference as specified in the Contract Documents. 2.06 Public Meeting Contractor may not mobilize any equipment, materials or resources to the Site prior to Contractor attending the Public Meeting as scheduled by the City. 2.07 Initial Acceptance of Schedules No progress payment shall be made to Contractor until acceptable schedules are submitted to City in accordance with the Schedule Specification as provided in the Contract Documents. 2.08 Electronic Submittals A. Except as otherwise stated elsewhere in the Contract, the City and Contractor may transmit, and shall accept, Project-related correspondence, text, data, documents, drawings, information, and graphics, including but not limited to Shop Drawings and other submittals, in electronic media or digital format. B. When transmitting items in electronic media or digital format, the transmitting party makes no representations as to long term compatibility, usability, or readability of the items resulting from the recipient’s use of software application packages, operating systems, or computer hardware differing from those used in the drafting or transmittal of the items, or from those established in applicable transmittal protocols. ARTICLE 3 – CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one is as binding as if required by all. B. It is the intent of the Contract Documents to describe a functionally complete project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being requiredtoproducethe indicated result will be provided whether or not specifically called for,at no additional cost to City. C. Clarifications and interpretations of the Contract Documents shall be issued by City. D. The Specifications may vary in form, format and style. Some Specification sections may be written in varying degrees of streamlined or declarative style and some sections may be 379 00 72 00 -1 GENERAL CONDITIONS Page 9 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 relatively narrative by comparison. Omission of such words and phrases as “the Contractor shall,” “in conformity with,” “as shown,” or “as specified” are intentional in streamlined sections. Omitted words and phrases shall be supplied by inference. Similar types of provisions may appear in various parts of a section or articles within a part depending on the format of the section. The Contractor shall not take advantage of any variation of form,format or style in making Contract Claims. E. The cross referencing of specification sections under the subparagraph heading “Related Sections include but are not necessarily limited to:” and elsewhere withineachSpecification section is provided as an aid and convenience to the Contractor. The Contractor shall not rely on the cross referencing provided and shall be responsible to coordinate the entire Work under the Contract Documents and provide a complete Project whether or not the cross referencing is provided in each section or whether or not the cross referencing is complete. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of City, Contractor, or any of their subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to City, or any of its officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A.Reporting Discrepancies: 1.Contractor’s Review of Contract Documents Before Starting Work: Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein against all applicable field measurements and conditions. Contractor shall promptly report in writing to City any conflict, error, ambiguity, or discrepancy which Contractor discovers, or has actual knowledge of, and shall obtain a written interpretation or clarification from City before proceeding with any Work affected thereby. 2.Contractor’s Review of Contract Documents During Performance of Work:If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy 380 00 72 00 -1 GENERAL CONDITIONS Page 10 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation , (b) any standard, specification, manual, or code, or (c) any instruction of any Supplier, then Contractor shall promptly report it to City in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.17.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04. 3. Contractor shall not be liable to City for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof. B.Resolving Discrepancies: 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and the provisions of any standard, specification, manual, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents). 2. In case of discrepancies, figured dimensions shall govern over scaled dimensions, Drawings shall govern over Specifications, and Supplementary Conditions shall govern over General Conditions and Specifications. 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by a Change Order. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work not involving a change in Contract Price or Contract Time, may be authorized, by one or more of the following ways: 1. A Field Order; 2. City’s review of a Submittal (subject to the provisions of Paragraph 6.18.C); or 3. City’s written interpretation or clarification. 3.05 Reuse of Documents A. Contractor and any Subcontractor or Supplier shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer, including electronic media editions; or 2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of City and specific written 381 00 72 00 -1 GENERAL CONDITIONS Page 11 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 verification or adaptation by Engineer. B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes. 3.06 Electronic Data A. Unless otherwise stated in the Supplementary Conditions, the data furnished by City or Engineer to Contractor, or by Contractor to City or Engineer, that may be relied upon are limited to the printed copies included in the Contract Documents (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user’s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. B. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data’s creator. ARTICLE 4 – AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. City shall furnish the Site. City shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. City will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. 1. The City has obtained or anticipates acquisition of and/or access to right-of-way, and/or easements. Any outstanding right-of-way and/or easements are anticipated to be acquired in accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding right-of-way, and/or easements. 2. The City has or anticipates removing and/or relocating utilities, and obstructions to the Site. Any outstanding removal or relocation of utilities or obstructions is anticipated in accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding utilities or obstructions to be removed, adjusted, and/or relocated by others. B. Upon reasonable written request, City shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed. 382 00 72 00 -1 GENERAL CONDITIONS Page 12 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 C. Contractor shall provide for all additional lands and access thereto that may be required for construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A.Reports and Drawings:The Supplementary Conditions identify: 1. those reports known to City of explorations and tests of subsurface conditions at or contiguous to the Site; and 2. those drawings known to City of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities). B.Limited Reliance by Contractor on Technical Data Authorized:Contractor may rely upon the accuracy of the “technical data” contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such “technical data” is identified in the Supplementary Conditions. Contractor may not make any Contract Claim against City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information. 4.03 Differing Subsurface or Physical Conditions A.Notice:If Contractor believes that any subsurface or physical condition that is uncovered or revealed either: 1. is of such a nature as to establish that any “technical data” on which Contractor is entitled to rely as provided in Paragraph 4.02 is materially inaccurate; or 2. is of such a nature as to require a change in the Contract Documents; or 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the 383 00 72 00 -1 GENERAL CONDITIONS Page 13 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.17.A), notify City in writing about such condition. B.Possible Price and Time Adjustments Contractor shall not be entitled to any adjustment in the Contract Price or Contract Time if: 1. Contractor knew of the existence of such conditions at the time Contractor made a final commitment to City with respect to Contract Price and Contract Time by the submission of a Bid or becoming bound under a negotiated contract; or 2. the existence of such condition could reasonably have been discovered or revealed as a result of the examination of the Contract Documents or the Site; or 3. Contractor failed to give the written notice as required by Paragraph 4.03.A. 4.04 Underground Facilities A.Shown or Indicated:The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to City or Engineer by the owners of such Underground Facilities, including City, or by others. Unless it is otherwise expressly provided in the Supplementary Conditions: 1. City and Engineer shall not be responsible for the accuracy or completeness of any such information or data provided by others; and 2. the cost of all of the following will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data; b. locating all Underground Facilities shown or indicated in the Contract Documents; c. coordination and adjustment of the Work with the owners of such Underground Facilities, including City, during construction; and d. the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work. B.Not Shown or Indicated: 1. If an Underground Facility which conflicts with the Work is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.17.A), 384 00 72 00 -1 GENERAL CONDITIONS Page 14 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 identify the owner of such Underground Facility and give notice to that owner and to City. City will review the discovered Underground Facility and determine the extent,ifany,to which a change may be required in the Contract Documents to reflect and document the consequences of the existence or location of the Underground Facility. Contractor shall be responsible for the safety and protection of such discovered Underground Facility. 2. If City concludes that a change in the Contract Documents is required, a Change Order may be issued to reflect and document such consequences. 3. Verification of existing utilities, structures, and service lines shall include notification of all utility companies a minimum of 48 hours in advance of construction including exploratory excavation if necessary. 4.05 Hazardous Environmental Condition at Site A.Reports and Drawings:The Supplementary Conditions identify those reports and drawings known to City relating to Hazardous Environmental Conditions that have been identified at the Site. B.Limited Reliance by Contractor on Technical Data Authorized:Contractor may rely upon the accuracy of the “technical data” contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such “technical data” is identified in the Supplementary Conditions. Contractor may not make any Contract Claim against City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions or information. C. Contractor shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Contractor shall be responsible for a Hazardous Environmental Condition created with any materials brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible. D. If Contractor encounters a Hazardous Environmental Condition or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by 385 00 72 00 -1 GENERAL CONDITIONS Page 15 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Paragraph 6.17.A); and (iii) notify City (and promptly thereafter confirm such notice in writing). City may consider the necessity to retain a qualified expert to evaluate such condition or take corrective action, if any. E. Contractor shall not be required to resume Work in connection with such condition or in any affected area until after City has obtained any required permits related thereto and delivered written notice to Contractor: (i) specifying that such condition and any affected area is or has been rendered suitable for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed. F. If after receipt of such written notice Contractor does not agree to resumesuchWorkbasedona reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then City may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. City may have such deleted portion of the Work performed by City’s own forces or others. G.To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless City, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06.G shall obligate Contractor to indemnify any individual or entity from and against the consequences of that individual’s or entity’s own negligence. H. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 5 – BONDS AND INSURANCE 5.01 Licensed Sureties and Insurers All bonds and insurance required by the Contract Documents to be purchased and maintained by Contractor shall be obtained from surety or insurance companies that are duly licensed or authorized in the State of Texas to issue bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 5.02 Performance, Payment, and Maintenance Bonds A. Contractor shall furnish performance and payment bonds, in accordance with Texas Government Code Chapter 2253 or successor statute, each in an amount equal to the Contract Price as security for the faithful performance and payment of all of Contractor’s obligations under the Contract Documents. B. Contractor shall furnish maintenance bonds in an amount equal to the Contract Price as security 386 00 72 00 -1 GENERAL CONDITIONS Page 16 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 to protect the City against any defects in any portion of the Work described in the Contract Documents. Maintenance bonds shall remain in effect for two (2) years after the date of Final Acceptance by the City. C. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury.All bonds signed by an agent or attorney-in-fact must be accompanied by a sealed and dated power of attorney which shall show that it is effective on the date the agent or attorney-in-fact signed each bond. The bonds must be dated on, or after, the date of the Contract. D. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Texas or it ceases to meet the requirements of Paragraph 5.02.C, Contractor shall promptly notify City and shall, within30daysaftertheevent giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs 5.01 and 5.02.C. 5.03 Certificates of Insurance A. Contractor shall deliver to City, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by City or any other additional insured) which Contractor is required to purchase and maintain. 1. The certificate of insurance shall document the City, and all identified entities named in the Supplementary Conditions as “Additional Insured” on all liability policies. 2. The Contractor’s general liability insurance shall include a, “per project” or “per location”, endorsement, which shall be identified in the certificate of insurance provided to the City. 3. The certificate shall be signed by an agent authorized to bind coverage on behalf of the insured, be complete in its entirety, and show complete insurance carrier names as listed in the current A.M. Best Property & Casualty Guide 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Except for workers’ compensation, all insurers must have a minimum rating of A-: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of City is required. 5. All applicable policies shall include a Waiver of Subrogation (Rights ofRecovery)infavor of the City. In addition, the Contractor agrees to waive all rights of subrogation against the Engineer (if applicable), and each additional insured identified in the Supplementary Conditions 387 00 72 00 -1 GENERAL CONDITIONS Page 17 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 6. Failure of the City to demand such certificates or other evidence of full compliance with the insurance requirements or failure of the City to identify a deficiency from evidence that is provided shall not be construed as a waiver of Contractor’s obligation to maintain such lines of insurance coverage. 7. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shallfollowformofthe primary coverage. 8. Unless otherwise stated, all required insurance shall be written on the “occurrence basis”. If coverage is underwritten on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the effective date of the agreement and the certificate of insurance shall state that the coverage is claims-made and the retroactive date. The insurance coverage shall be maintained for the duration of the Contract and for three (3) years following Final Acceptance provided under the Contract Documents or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. 9. Policies shall have no exclusions by endorsements, which, neither nullify or amend, the required lines of coverage, nor decrease the limits of said coverage unless such endorsements are approved in writing by the City. In the event a Contract has been bid or executed and the exclusions are determined to be unacceptable or the City desires additional insurance coverage, and the City desires the contractor/engineer to obtain such coverage, the contract price shall be adjusted by the cost of the premium for such additional coverage plus 10%. 10. Any self-insured retention (SIR), in excess of $25,000.00, affecting required insurance coverage shall be approved by the City in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, or self-funding, must also be approved by City. 11. Any deductible in excess of $5,000.00, for any policy that does not provide coverage on a first-dollar basis, must be acceptable to and approved by the City. 12. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverage’s and their limits whendeemed necessary and prudent by the City based upon the scope of the Work, changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City. The City shall be required to provide prior notice of 90 days, and the insurance adjustments shall be incorporated into the Work by Change Order. 13. City shall be entitled, upon written request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletionorrevisionor modifications of particular policy terms, conditions, limitations, or exclusions necessary to conform the policy and endorsements to the requirements of the Contract. Deletions, revisions, or modifications shall not be required where policy provisions are established by 388 00 72 00 -1 GENERAL CONDITIONS Page 18 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 law or regulations binding upon either party or the underwriter on any such policies. 14. City shall not be responsible for the direct payment of insurance premium costs for Contractor’s insurance. 5.04 Contractor’s Insurance A.Workers Compensation and Employers’ Liability.Contractor shall purchase and maintain such insurance coverage with limits consistent with statutory benefits outlined in the Texas Workers’ Compensation Act (Texas Labor Code, Ch. 406, as amended), and minimum limits for Employers’ Liability as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor’s performance of the Work and Contractor’s other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers’ compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor’s employees. B.Commercial General Liability.Coverage shall include but not be limited to covering liability (bodily injury or property damage) arising from: premises/operations, independent contractors, products/completed operations, personal injury, liability under an insured contract, and explosion/collapse/underground (where those exposures exist). Insurance shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services Office (ISO) policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. The Commercial General Liability policy, shall have no exclusions by endorsements that would alter of nullify premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained with the policy, unless the City approves such exclusions in writing. For construction projects that present a substantial completed operation exposure, the City may require the contractor to maintain completed operations coverage for a minimum of no less than three (3) years following the completion of the project (if identified in the Supplementary Conditions). C.Automobile Liability.A commercial business auto policy shall provide coverage on “any auto”, defined as autos owned, hired and non-owned and provide indemnity for claims for damages because bodily injury or death of any person and or property damage arising out of the work, maintenance or use of any motor vehicle by the Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable. 389 00 72 00 -1 GENERAL CONDITIONS Page 19 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 D.Railroad Protective Liability.If any of the work or any warranty work is within the limits of railroad right-of-way, the Contractor shall comply with the requirementsidentifiedinthe Supplementary Conditions. E.Notification of Policy Cancellation:Contractor shall immediately notify City upon cancellation or other loss of insurance coverage. Contractor shall stop work until replacement insurance has been procured. There shall be no time credit for days not worked pursuant to this section. 5.05 Acceptance of Bonds and Insurance; Option to Replace If City has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the Contractor in accordance with Article 5 on the basis of non-conformance with the Contract Documents, the City shall so notify the Contractor in writing within 10 Business Days after receipt of the certificates (or other evidence requested). Contractor shall provide to the City such additional information in respect of insurance provided as the City may reasonably request. If Contractor does not purchase or maintain all of the bonds and insurance required by the Contract Documents, the City shall notify the Contractor in writing of such failure prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. ARTICLE 6 – CONTRACTOR’S RESPONSIBILITIES 6.01 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. B. At all times during the progress of the Work, Contractor shall assign a competent Superintendent, who is proficient in English, and who shall not be replaced without written notice to City. If at any time the Superintendent is not satisfactory to the City, Contractor shall, if requested by City, replace the Superintendent with another satisfactory to City. C. Contractor shall notify the City 24 hours prior to moving areas during thesequenceof construction. 6.02 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during Regular Working Hours. Contractor will not permit the 390 00 72 00 -1 GENERAL CONDITIONS Page 20 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 performance of Work beyond Regular Working Hours or for Weekend Working Hours without City’s written consent (which will not be unreasonably withheld). Written request (by letter or electronic communication) to perform Work: 1. for beyond Regular Working Hours, request must be made by noon at least two (2) Business Days prior 2. for Weekend Working Hours, request must be made by noon of the preceding Wednesday 3. for legal holidays, request must be made by noon seven Days prior to the legal holiday. 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, Contractor required testing, start-up, and completion of the Work, whether or not such items are specifically called for in the Contract Documents. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of sufficient quality to complete the Work and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of City. If required by City, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment to be incorporated into the Work shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. D. All items of standard equipment to be incorporated into the Work shall be the latest model at the time of bid, unless otherwise specified. 6.04 Project Schedule A. Contractor shall adhere to the Project Schedule established in accordance with Paragraph 2.07 and the General Requirements as it may be adjusted from time to time as provided below. 1. Contractor shall submit to City for acceptance (to the extent indicated inParagraph2.07and the General Requirements) proposed adjustments in the Project Schedule that will not result in changing the Contract Time. Such adjustments will comply with any provisions of the General Requirements applicable thereto. 2. Contractor shall submit to City a monthly Project Schedule with a monthlyprogresspayment 391 00 72 00 -1 GENERAL CONDITIONS Page 21 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 for the duration of the Contract in accordance with the schedule specification 01 32 16. 3. Proposed adjustments in the Project Schedule that will change the Contract Time shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Time mayonlybemadebyaChangeOrder. 6.05 Substitutes and “Or-Equals” A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or “or-equal” item or no substitution is permitted, other items of material or equipment of other Suppliers may be submitted to City for review under the circumstances described below. 1.“Or-Equal” Items:If in City’s sole discretion an item of material or equipment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by City as an “or-equal”item, in which case review and approval of the proposed item may, in City’s sole discretion, be accomplished without compliance with some or all of the requirements for approval of proposed substitute items. For the purposes of this Paragraph 6.05.A.1, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. the City determines that: 1) it is at least equal in materials of construction, quality, durability,appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; and 3) it has a proven record of performance and availability of responsive service; and 4) it is not objectionable to the City. b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the City or increase in Contract Time;and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2.Substitute Items: a. If in City’s sole discretion an item of material or equipment proposed by Contractor does not qualify as an “or-equal” item under Paragraph 6.05.A.1, it may be submitted as a 392 00 72 00 -1 GENERAL CONDITIONS Page 22 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow City to determine if the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefor. Requests for review of proposed substitute items of material or equipment will not be accepted by City from anyone otherthan Contractor. c. Contractor shall make written application to City for review of a proposed substitute item of material or equipment that Contractor seeks to furnish or use. The application shall complywithSection012500and: 1) shall certify that the proposed substitute item will: a) perform adequately the functions and achieve the results called for by the general design; b) be similar in substance to that specified; c) be suited to the same use as that specified; and 2) will state: a) the extent, if any, to which the use of the proposed substitute item will prejudice Contractor’s achievement of final completion on time; b) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with City for other work on the Project) to adapt the design to the proposed substitute item; c) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty; and 3) will identify: a) all variations of the proposed substitute item from that specified; b) available engineering, sales, maintenance, repair, and replacement services; and 4) shall contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and Damage Claims of other contractors affected by any resulting change. B.Substitute Construction Methods or Procedures:If a specific means, method, technique, sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique,sequence, or procedure 393 00 72 00 -1 GENERAL CONDITIONS Page 23 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 of construction approved by City. Contractor shall submit sufficient information to allow City, in City’s sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. Contractor shall make written application to City for review in the same manner as those provided in Paragraph 6.05.A.2. C.City’s Evaluation:City will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.05.A and 6.05.B. City may require Contractor to furnish additional data about the proposed substitute. City will be the sole judge of acceptability. No “or-equal” or substitute will be ordered, installed or utilized until City’s review is complete, which will be evidenced by a Change Order in the case of a substitute and an accepted Submittal for an “or-equal.” City will advise Contractor in writing of its determination. D.Special Guarantee:City may require Contractor to furnish at Contractor’s expense a special performance guarantee, warranty, or other surety with respect to any substitute.Contractor shall indemnify and hold harmless City and anyone directly or indirectly employed by them from and against any and all claims, damages, losses and expenses (including attorneys fees) arising out of the use of substituted materials or equipment. E.City’s Cost Reimbursement: City will record City’s costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.05.A.2 and 6.05.B. Whether or not City approves a substitute so proposed or submitted by Contractor, Contractor may be required to reimburse City for evaluating each such proposed substitute. Contractor may also be required to reimburse City for the charges for making changes in the Contract Documents (or in the provisions of any other direct contract with City) resulting from the acceptance of each proposed substitute. F.Contractor’s Expense: Contractor shall provide all data in support of any proposed substitute or “or-equal” at Contractor’s expense. G.City Substitute Reimbursement: Costs (savings or charges) attributable to acceptance of a substitute shall be incorporated to the Contract by Change Order. H.Time Extensions: No additional time will be granted for substitutions. 6.06 Concerning Subcontractors, Suppliers, and Others A. Contractor shall perform with his own organization, work of a value not less than 35% of the value embraced on the Contract, unless otherwise approved by the City. B. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, against whom City may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection (excluding those acceptable to City as indicated in Paragraph 6.06.C). C. The City may from time to time require the use of certain Subcontractors,Suppliers, or other 394 00 72 00 -1 GENERAL CONDITIONS Page 24 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 individuals or entities on the project, and will provide such requirements in the Supplementary Conditions. D. Contractor shall be fully responsible to City for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing anyoftheWorkjustas Contractor is responsible for Contractor’s own acts and omissions. Nothing in the Contract Documents: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between City and any such Subcontractor, Supplier or other individual or entity; nor 2. shall create any obligation on the part of City to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. E. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. F. All Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work shall communicate with City through Contractor. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appropriate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of City. 6.07 Wage Rates A.Duty to pay Prevailing Wage Rates.The Contractor shall comply with all requirements of Chapter 2258, Texas Government Code (as amended), including the payment of not less than the rates determined by the City Council of the City of Denton to be the prevailing wage rates in accordance with Chapter 2258. Such prevailing wage rates are included in these Contract Documents. B.Penalty for Violation.A Contractor or any Subcontractor who does not pay the prevailing wage shall, upon demand made by the City, pay to the City $60 for each worker employed for each calendar day or part of the day that the worker is paid less than the prevailing wage rates stipulated in these contract documents. This penalty shall be retained by the City to offset its administrative costs, pursuant to Texas Government Code 2258.023. C.Complaints of Violations and City Determination of Good Cause.On receipt of information, including a complaint by a worker, concerning an alleged violation of 2258.023, Texas Government Code, by a Contractor or Subcontractor, the City shall make an initial determination, before the 31st day after the date the City receives the information, as to whether 395 00 72 00 -1 GENERAL CONDITIONS Page 25 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 good cause exists to believe that the violation occurred. The City shall notify in writing the Contractor or Subcontractor and any affected worker of its initial determination. Upon the City’s determination that there is good cause to believe the Contractor or Subcontractor has violated Chapter 2258, the City shall retain the full amounts claimed by the claimant or claimants as the difference between wages paid and wages due under the prevailing wage rates, such amounts being subtracted from successive progress payments pending a final determination of the violation. D.Arbitration Required if Violation Not Resolved.An issue relating to an alleged violation of Section 2258.023, Texas Government Code, including a penalty owed to the City or an affected worker, shall be submitted to binding arbitration in accordance with the Texas General Arbitration Act (Article 224 et seq., Revised Statutes) if the Contractor or Subcontractor and any affected worker does not resolve the issue by agreement before the 15th day after the date the City makes its initial determination pursuant to Paragraph C above. If the persons required to arbitrate under this section do not agree on an arbitrator before the 11th day after the date that arbitration is required, a district court shall appoint an arbitrator on the petition of any of the persons. The City is not a party in the arbitration. The decision and award of the arbitrator is final and binding on all parties and may be enforced in any court of competent jurisdiction. E.Records to be Maintained.The Contractor and each Subcontractor shall, for a period of three (3) years following the date of acceptance of the work, maintain records that show (i) the name and occupation of each worker employed by the Contractor in the construction of the Work provided for in this Contract; and (ii) the actual per diem wages paid to each worker.The records shall be open at all reasonable hours for inspection by the City. The provisions of Paragraph 6.23, Right to Audit, shall pertain to this inspection. F.Progress Payments. With each progress payment or payroll period, whichever is less, the Contractor shall submit an affidavit stating that the Contractor has complied with the requirements of Chapter 2258, Texas Government Code. G.Posting of Wage Rates. The Contractor shall post prevailing wage rates in a conspicuous place at all times. H.Subcontractor Compliance. The Contractor shall include in its subcontracts and/or shall otherwise require all of its Subcontractors to comply with Paragraphs A through G above. 6.08 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of City, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by City in the Contract Documents. Failure of the City to disclose such information does not relieve the Contractor from its obligations to pay for the 396 00 72 00 -1 GENERAL CONDITIONS Page 26 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 use of said fees or royalties to others. B.To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless City, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.09 Permits and Utilities A.Contractor obtained permits and licenses.Contractor shall obtain and pay for all construction permits and licenses except those provided for in the Supplementary Conditions or Contract Documents. City shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement, except for permits provided by the City as specified in 6.09.B. City shall pay all charges of utility owners for connections for providing permanent service to the Work. B.City obtained permits and licenses.City will obtain and pay for all permits and licenses as provided for in the Supplementary Conditions or Contract Documents. It will be the Contractor’s responsibility to carry out the provisions of the permit. If the Contractor initiates changes to the Contract and the City approves the changes, the Contractor is responsible for obtaining clearances and coordinating with the appropriate regulatory agency. The City will not reimburse the Contractor for any cost associated with these requirements of any City acquired permit. The following are permits the City will obtain if required: 1. Texas Department of Transportation Permits 2. U.S. Army Corps of Engineers Permits 3. Texas Commission on Environmental Quality Permits 4. Railroad Company Permits 5. Texas Department of Licensing and Regulation (TDLR) Permits C.Outstanding permits and licenses.The City anticipates acquisition of and/or access to permits and licenses. Any outstanding permits and licenses are anticipated to be acquiredinaccordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding permits and licenses. 6.10 Laws and Regulations 397 00 72 00 -1 GENERAL CONDITIONS Page 27 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, the City shall not be responsible for monitoring Contractor’s compliance with any Laws or Regulations. B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work. However, it shall not be Contractor’s responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve Contractor of Contractor’s obligations under Paragraph 3.02. C. Changes in Laws or Regulations not known at the time of opening of Bids having an effect on the cost or time of performance of the Work may be the subject of an adjustment in Contract Price or Contract Time. 6.11 Taxes A. On a contract awarded by the City, an organization which qualifies for exemption pursuant to Texas Tax Code, Subchapter H (as amended), the Contractor may purchase, rent or lease all materials, supplies and equipment used or consumed in the performance of this contract by issuing to his supplier an exemption certificate in lieu of the tax, said exemption certificate to comply with State Comptroller’s Rulings applicable to Texas Tax Code, Subchapter H. Any such exemption certificate issued to the Contractor in lieu of the tax shall be subject to and shall comply with all applicable rulings pertaining to the Texas Tax Code, Subchapter H. B. Texas Tax permits and information may be obtained from: 1. Comptroller of Public Accounts Sales Tax Division Capitol Station Austin, TX 78711; or 2.http://www.window.state.tx.us/taxinfo/taxforms/93-forms.html 6.12 Use of Site and Other Areas A.Limitation on Use of Site and Other Areas: 1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas 398 00 72 00 -1 GENERAL CONDITIONS Page 28 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 resulting from the performance of the Work. 2. At any time when, in the judgment of the City, the Contractor has obstructed, closed, or is carrying on operations in a portion of a street, right-of-way, or easement greater than is necessary for proper execution of the Work, the City may require the Contractor to finish the section on which operations are in progress before work is commenced on any additional area of the Site. 3. Construction equipment, spoil materials, supplies, forms, buildings, labs, or equipment and supply storage buildings, or any other item that may be transported by flood flows, shall not be stored within existing federal floodways during the course of the Work. 4. Should any Damage Claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly attempt to resolve the Damage Claim. 5.Pursuant to Paragraph 6.21, Contractor shall indemnify and hold harmless City, from and against all claims, costs, losses, and damages arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against City. B.Removal of Debris During Performance of the Work:During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. C.Site Maintenance Cleaning:24 hours after written notice is given to the Contractor that the clean-up on the job site is proceeding in a manner unsatisfactory to the City, if the Contractor fails to correct the unsatisfactory procedure, the City may take such direct action as the City deems appropriate to correct the clean-up deficiencies cited to the Contractor in the written notice (by letter or electronic communication), and the costs of such direct action, plus 25% of such costs, shall be deducted from the monies due or to become due to the Contractor. D.Final Site Cleaning:Prior to Final Acceptance of the Work, Contractor shall clean the Site and the Work and make it ready for utilization by City or adjacent property owner. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition or better all property disturbed by the Work. E.Loading Structures:Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.13 Record Documents A. Contractor shall maintain in a safe place at the Site or in a place designated by the Contractor and approved by the City, one (1) record copy of all Drawings, Specifications,Addenda, Change Orders, Field Orders, and written interpretations and clarifications in good order and annotated to 399 00 72 00 -1 GENERAL CONDITIONS Page 29 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 show changes made during construction. These record documents together with all approved Samples and a counterpart of all accepted Submittals will be available to City for reference. Upon completion of the Work, these record documents, any operation and maintenance manuals, and Submittals will be delivered to City prior to Final Inspection. Contractor shall include accurate locations for buried and embedded items. 6.14 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety Laws and Regulations. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relatingtothesafetyof persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. Contractor shall comply with the applicable requirements of City’s safety programs, if any. D. Contractor shall inform City of the specific requirements of Contractor’s safety program, if any, with which City’s employees and representatives must comply while at the Site. E. All damage, injury, or loss to any property referred to in Paragraph 6.14.A.2 or 6.14.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor. F. Contractor’s duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and City has accepted the Work. 6.15 Safety Representative Contractor shall inform City in writing of Contractor’s designated safety representative at the Site. 400 00 72 00 -1 GENERAL CONDITIONS Page 30 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 6.16 Hazard Communication Programs Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers in accordance with Laws or Regulations. 6.17 Emergencies and/or Rectification A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give City prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If City determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Change Order may be issued. B. Should the Contractor fail to respond to a request from the City to rectify any discrepancies, omissions, or correction necessary to conform with the requirements of the Contract Documents, the City shall give the Contractor written notice that such work or changes are to be performed. The written notice shall direct attention to the discrepant condition and request the Contractor to take remedial action to correct the condition. In the event the Contractor does not take positive steps to fulfill this written request, or does not show just cause for not taking the proper action, within 24 hours, the City may take such remedial action with City resources or by contract. The City shall deduct an amount equal to the entire costs for such remedial action, plus 25%, from any funds due or become due the Contractor on the Project. 6.18 Submittals A. Contractor shall submit required Submittals to City for review and acceptance in accordance with the accepted Schedule of Submittals (as required by Paragraph 2.07).Each submittal will be identified as City may require. 1. Submit in accordance with the General Requirements. 2. Data shown on the Submittals will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data,to demonstrate to City the services, materials, and equipment Contractor proposes to provide,and to enable City to review the information for the limited purposes required by Paragraph 6.18.C. 3. Submittals submitted as herein provided by Contractor and reviewed by City for conformance with the design concept shall be executed in conformity with the Contract Documents unless otherwise required by City. 4. When Submittals are submitted for the purpose of showing the installation in greater detail, their review shall not excuse Contractor from requirements shown on the Drawings and Specifications. 401 00 72 00 -1 GENERAL CONDITIONS Page 31 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 5. For-Information-Only submittals upon which the City is not expected to conduct review or take responsive action may be so identified in the Contract Documents. 6. Submit required number of Samples specified in the Specifications. 7. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as City may require to enable City toreviewthe submittal for the limited purposes required by Paragraph 6.18.C. B. Where a Submittal is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to City’s review and acceptance of the pertinent submittal will be at the sole expense and responsibility of Contractor. C.City’s Review: 1. City will provide timely review of required Submittals in accordance with the Schedule of Submittals acceptable to City. City’s review and acceptance will be only to determine if the items covered by the submittals will, after installation or incorporationintheWork,conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. City’s review and acceptance will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and acceptance of a separate item as such will not indicate approval of the assembly in which the item functions. 3. City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Section 01 33 00 and City has given written acceptance of each such variation by specific written notation thereof incorporated in or accompanying the Submittal. City’s review and acceptance shall not relieve Contractor from responsibility for complying with the requirements of the Contract Documents. 6.19 Continuing the Work Except as otherwise provided, Contractor shall carry on the Work and adhere to the Project Schedule during all disputes or disagreements with City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as City and Contractor may otherwise agree in writing. 402 00 72 00 -1 GENERAL CONDITIONS Page 32 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 6.20 Contractor’s General Warranty and Guarantee A. Contractor warrants and guarantees to City that all Work will be in accordance with the Contract Documents and will not be defective. City and its officers, directors, members, partners, employees, agents, consultants, and subcontractors shall be entitled to rely on representation of Contractor’s warranty and guarantee. B. Contractor’s warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor’s obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor’s obligation to perform the Work in accordance with the Contract Documents: 1. observations by City; 2. recommendation or payment by City of any progress or final payment; 3. the issuance of a certificate of Final Acceptance by City or any payment related thereto by City; 4. use or occupancy of the Work or any part thereof by City; 5. any review and acceptance of a Submittal by City; 6. any inspection, test, or approval by others; or 7. any correction of defective Work by City. D. The Contractor shall remedy any defects or damages in the Work and pay for any damage to other work or property resulting therefrom which shall appear within a period of two (2) years from the date of Final Acceptance of the Work unless a longer period is specified and shall furnish a good and sufficient maintenance bond, complying with the requirements of Article 5.02.B. The City will give notice of observed defects with reasonable promptness. 6.21 Indemnification A.Contractor covenants and agrees to indemnify, hold harmless and defend, atitsown expense, the City, its officers, servants and employees, from and against any and all claims arising out of, or alleged to arise out of, the work and services to be performed by the Contractor, its officers, agents, employees, subcontractors, licenses or invitees under this 403 00 72 00 -1 GENERAL CONDITIONS Page 33 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Contract. THIS INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY. This indemnity provision is intended to include, without limitation, indemnity for costs, expenses and legal fees incurred by the City in defending against such claims and causes of actions. B.Contractor covenants and agrees to indemnify and hold harmless, at its own expense, the City, its officers, servants and employees, from and against any and all loss, damage or destruction of property of the City, arising out of, or alleged to arise out of, the work and services to be performed by the Contractor, its officers, agents, employees, subcontractors, licensees or invitees under this Contract. THIS INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY. 6.22 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor’s responsibilities for construction means, methods, techniques, sequences and procedures. B. If professional design services or certifications by a design professionalrelatedtosystems, materials or equipment are specifically required of Contractor by the Contract Documents, City will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, and Submittals prepared by such professional. Submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional’s written approval when submitted to City. C. City shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided City has specified to Contractor performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6.22, City’s review and acceptance of design calculations and design drawings will be only for the limited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents. City’s review and acceptance of Submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.18.C. 404 00 72 00 -1 GENERAL CONDITIONS Page 34 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 6.23 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. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 6.24 Nondiscrimination A. The City is responsible for operating Public Transportation Programs and implementing transit- related projects, which are funded in part with Federal financial assistanceawardedbytheU.S. Department of Transportation and the Federal Transit Administration (FTA), without discriminating against any person in the United States on the basis of race, color, or national origin. B.Title VI, Civil Rights Act of 1964 as amended:Contractor shall comply with the requirements of the Act and the Regulations as further defined in the Supplementary Conditions for any project receiving Federal assistance. ARTICLE 7 – OTHER WORK AT THE SITE 7.01 Related Work at Site A. City may perform other work related to the Project at the Site with City’s employees, or other City contractors, or through other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then written notice thereof will be given to Contractor prior to starting any such other work; and B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner, and City, if City is performing other work with City’s employees or other City contractors, proper and safe access to the Site, provide a reasonable opportunity for the 405 00 72 00 -1 GENERAL CONDITIONS Page 35 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 introduction and storage of materials and equipment and the execution of such other work, and properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of City and the others whose work will be affected. C. If the proper execution or results of any part of Contractor’s Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to City in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor’s Work. Contractor’s failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor’s Work except for latent defects in the work provided by others. 7.02 Coordination A. If City intends to contract with others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Supplementary Conditions, City shall have authority for such coordination. ARTICLE 8 – CITY’S RESPONSIBILITIES 8.01 Communications to Contractor Except as otherwise provided in the Supplementary Conditions, City shall issue all communications to Contractor. 8.02 Furnish Data City shall timely furnish the data required under the Contract Documents. 8.03 Pay When Due City shall make payments to Contractor in accordance with Article 14. 406 00 72 00 -1 GENERAL CONDITIONS Page 36 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 8.04 Lands and Easements; Reports and Tests City’s duties with respect to providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and 4.05. Paragraph 4.02 refers to City’s identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions relating to existing surface or subsurface structures at or contiguous to the Site that have been utilized by City in preparing the Contract Documents. 8.05 Change Orders City shall execute Change Orders in accordance with Paragraph 10.03. 8.06 Inspections, Tests, and Approvals City’s responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph 13.03. 8.07 Limitations on City’s Responsibilities A. The City shall not supervise, direct, or have control or authority over,nor be responsible for, Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. City will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents. B. City will notify the Contractor of applicable safety plans pursuant to Paragraph 6.14. 8.08 Undisclosed Hazardous Environmental Condition City’s responsibility with respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph 4.06. 8.09 Compliance with Safety Program While at the Site, City’s employees and representatives shall comply with the specific applicable requirements of Contractor’s safety programs of which City has been informed pursuant to Paragraph 6.14. ARTICLE 9 – CITY’S OBSERVATION STATUS DURING CONSTRUCTION 9.01 City’s Project Manager or Duly Authorized Representative City will provide a Project Manager or duly authorized representative during the construction period. The duties and responsibilities and the limitations of authority of City’s Project Manager or duly appointed representative during construction are set forth in the Contract Documents. City’s Project Manager for this Contract is as set forth in the Supplementary Conditions. City will establish a duly authorized representative at the Preconstruction Meeting in accordance with Section 01 31 19. 407 00 72 00 -1 GENERAL CONDITIONS Page 37 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 9.02 Visits to Site A. City will make visits to the Site at intervals appropriate to the various stages of construction as City deems necessary in order to observe the progress that has been made and the quality of the various aspects of Contractor’s executed Work. Based on information obtained during such visits and observations, City will determine, in general, if the Workisproceedingin accordance with the Contract Documents. City will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. City’s efforts will be directed toward providing City a greater degree of confidence that the completed Work will conform generally to the Contract Documents. B. City’s visits and observations are subject to all the limitations on authority and responsibility set forth in Paragraph 8.07. Particularly, but without limitation, during or as a result of City’s visits or observations of Contractor’s Work, City will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Authorized Variations in Work City’s Project Manager or duly authorized representative may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order and will be binding on City and also on Contractor, who shall perform the Work involved promptly. 9.04 Rejecting Defective Work City will have authority to reject Work which City’s Project Manager or duly authorized representative believes to be defective, or will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. City will have authority to conduct special inspection or testing of the Work as provided in Article 13, whether or not the Work is fabricated, installed, or completed. 9.05 Determinations for Work Performed Contractor will determine the actual quantities and classifications of Work performed. City’s Project Manager or duly authorized representative will review with Contractor the preliminary determinations on such matters before rendering a written recommendation. City’s written decision will be final (except as modified to reflect changed factual conditions ormoreaccuratedata). 408 00 72 00 -1 GENERAL CONDITIONS Page 38 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 9.06 Decisions on Requirements of Contract Documents and Acceptability of Work A. City will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. B. City will render a written decision on any issue referred. C. City’s written decision on the issue referred will be final and binding on the Contractor, subject to the provisions of Paragraph 10.06. ARTICLE 10 – CHANGES IN THE WORK; CLAIMS; EXTRA WORK 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, City may, at any time or from time to time, order Extra Work. Upon notice of such Extra Work, Contractor shall proceed with the Work involved only upon receiving written notice from City. Extra Work will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). Extra Work shall be memorialized by a Change Order which may or may not precede an order of Extra work. B. For minor changes of Work not requiring changes to Contract Time or Contract Price, a Field Order may be issued by the City. 10.02 Unauthorized Changes in the Work Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Time with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.17. 10.03 Execution of Change Orders A. City and Contractor shall execute appropriate Change Orders covering: 1. changes in the Work which are: (i) ordered by City pursuant to Paragraph 10.01.A, (ii) required because of acceptance of defective Work under Paragraph 13.08 or City’s correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2. changes in the Contract Price or Contract Time which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed. 10.04 Dispute of Extra Work A. Should a difference arise as to what does or does not constitute Extra Work, or as to the payment thereof, and the City insists upon its performance, the Contractor shall proceed with the work after making written request for written orders and shall keep accurate account of the actual 409 00 72 00 -1 GENERAL CONDITIONS Page 39 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 reasonable cost thereof. Contract Claims regarding Extra Work shall be made pursuant to Paragraph 10.06. B. The Contractor shall furnish the City such installation records of all deviations from the original Contract Documents as may be necessary to enable the City to prepare for permanent record a corrected set of plans showing the actual installation. C. The compensation agreed upon for Extra Work whether or not initiated by a Change Order shall be a full, complete and final payment for all costs Contractor incurs as a result or relating to the change or Extra Work, whether said costs are known, unknown, foreseen or unforeseen at that time, including without limitation, any costs for delay, extended overhead, ripple or impact cost, or any other effect on changed or unchanged work as a result of the change or Extra Work. 10.05 Notification to Surety If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Time), the giving of any such notice will be Contractor’s responsibility. The amount of each applicable bond will be adjusted by the Contractor to reflect the effect of any such change. 10.06 Contract Claims Process A. City’s Decision Required: All Contract Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the City for decision. A decision by City shall be required as a condition precedent to any exercise by Contractor of any rights or remedies he may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Contract Claims. B.Notice: 1. Written notice stating the general nature of each Contract Claim shall be delivered by the Contractor to City no later than 15 days after the start of the event giving rise thereto. The responsibility to substantiate a Contract Claim shall rest with the party making the Contract Claim. 2. Notice of the amount or extent of the Contract Claim, with supporting data shall be delivered to the City on or before 45 days from the start of the event giving rise thereto (unless the City allows additional time for Contractor to submit additional or more accurate data in support of such Contract Claim). 3. A Contract Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 12.01. 4. A Contract Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Paragraph 12.02. 410 00 72 00 -1 GENERAL CONDITIONS Page 40 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 5. Each Contract Claim shall be accompanied by Contractor’s written statement that the adjustment claimed is the entire adjustment to which the Contractor believes it is entitled as a result of said event. 6. The City shall submit any response to the Contractor within 30 days after receipt of the claimant’s last submittal (unless Contract allows additional time). C.City’s Action: City will review each Contract Claim and, within 30 days after receipt of the last submittal of the Contractor, if any, take one of the following actions in writing: 1. deny the Contract Claim in whole or in part; 2. approve the Contract Claim; or 3. notify the Contractor that the City is unable to resolve the Contract Claim if, in the City’s sole discretion, it would be inappropriate for the City to do so. For purposes of further resolution of the Contract Claim, such notice shall be deemed a denial. D. City’s written action under Paragraph 10.06.C will be final and binding, unless City or Contractor invoke the dispute resolution procedure set forth in Article 16within30daysofsuch action or denial. E. No Contract Claim for an adjustment in Contract Price or Contract Time will be valid if not submitted in accordance with this Paragraph 10.06. F. If the City fails to take any action pursuant to Paragraph 10.06 (C) the contract Claim is considered to have been denied by the City. ARTICLE 11 – COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK; PLANS QUANTITY MEASUREMENT 11.01 Cost of the Work A.Costs Included:The term Cost of the Work means the sum of all costs, except those excluded in Paragraph 11.01.B, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work covered by a Change Order, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work. Such costs shall not include any of the costs itemized in Paragraph 11.01.B, and shall include but not be limited to the following items: 1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by City and Contractor. Such employees shall include, without limitation, superintendents, foremen, and other personnel employed full time on the Work. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include; 411 00 72 00 -1 GENERAL CONDITIONS Page 41 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 a. salaries and wages plus the cost of fringe benefits, which shall include social security contributions, unemployment, excise, and payroll taxes, workers’ compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing Work outside of Regular Working Hours, Weekend Working Hours, or legal holidays, shall be included in the above to the extent authorized by City. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers’ field services required in connection therewith. 3. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved byCity,andthe costs of transportation, loading, unloading, assembly, dismantling, andremovalthereof.All such costs shall be in accordance with the terms of said rental agreements.The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. 4. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by City, Contractor shall obtain competitive bids from subcontractors acceptable to City and Contractor and shall deliver such bids to City, who will then determine, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor’s Cost of the Work and fee shall be determined in the same manner as Contractor’s Cost of the Work and fee as provided in this Paragraph 11.01. 5. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 6. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor’s employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Sales, consumer, use, and other similar taxes related to the Work, and forwhich Contractor is liable not covered under Paragraph 6.11, as imposed by Laws and Regulations. 412 00 72 00 -1 GENERAL CONDITIONS Page 42 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 d. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any ofthemmay be liable, and royalty payments and fees for permits and licenses. e. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work, provided such losses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of City. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor’s fee. f. The cost of utilities, fuel, and sanitary facilities at the Site. g. Minor expenses such as telegrams, long distance telephone calls, telephone and communication services at the Site, express and courier services, and similar petty cash items in connection with the Work. h. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain. B.Costs Excluded:The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor’s officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor’s principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.01.A.1 or specifically covered by Paragraph 11.01.A.4, all of which are to be considered administrative costs covered by the Contractor’s fee. 2. Expenses of Contractor’s principal and branch offices other than Contractor’s office at the Site. 3. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind. 413 00 72 00 -1 GENERAL CONDITIONS Page 43 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 C.Contractor’s Fee:When all the Work is performed on the basis of cost-plus, Contractor’s fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor’s fee shall be determined as set forth in Paragraph 12.01.C. D.Documentation:Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs 11.01.A and 11.01.B, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to City an itemized cost breakdown together with supporting data. 11.02 Allowances A.Specified Allowance:It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to City. B.Cash Allowances: 1. Contractor agrees that: a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor’s costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C.Contingency Allowance:Contractor agrees that a contingency allowance, if any, is for the sole use of City. D. Prior to final payment, an appropriate Change Order will be issued to reflect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by 414 00 72 00 -1 GENERAL CONDITIONS Page 44 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 City subject to the provisions of Paragraph 9.05. C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and profit for each separately identified item. Work described in the Contract Documents, or reasonably inferred as required for a functionally complete installation, but not identified in the listing of unit price items shall be considered incidental to unit price work listed and the cost of incidental work included as part of the unit price. D. City may make an adjustment in the Contract Price in accordance with Paragraph 12.01 if: 1. the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect to any other item of Work. E.Increased or Decreased Quantities:The City reserves the right to order Extra Work in accordance with Paragraph 10.01. 1. If the changes in quantities or the alterations do not significantly change the character of work under the Contract Documents, the altered work will be paid for at the Contract unit price. 2. If the changes in quantities or alterations significantly change the character of work, the Contract will be amended by a Change Order. 3. If no unit prices exist, this will be considered Extra Work and the Contract will be amended by a Change Order in accordance with Article 12. 4. A significant change in the character of work occurs when: a. the character of work for any Item as altered differs materially in kind or nature from that in the Contract or b. a Major Item of work varies by more than 25% from the original Contract quantity. 5. When the quantity of work to be done under any Major Item of the Contract is more than 125% of the original quantity stated in the Contract, then either party to the Contract may request an adjustment to the unit price on the portion of the work that is above 125%. 6. When the quantity of work to be done under any Major Item of the Contract is less than 75% of the original quantity stated in the Contract, then either party to the Contract may request an adjustment to the unit price. 415 00 72 00 -1 GENERAL CONDITIONS Page 45 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 11.04 Plans Quantity Measurement for Unclassified Excavation or Embankment A. Plans quantities may or may not represent the exact quantity of work performed or material moved, handled, or placed during the execution of the Contract. The estimated bid quantities are designated as final payment quantities, unless revised by the governing Section or this Article. B. If the quantity measured as outlined under “Price and Payment Procedures” varies by more than 25% (or as stipulated under “Price and Payment Procedures” for specific Items) from the total estimated quantity for an individual Item originally shown in the Contract Documents, an adjustment may be made to the quantity of authorized work done for payment purposes. The party to the Contract requesting the adjustment will provide field measurements and calculations showing the final quantity for which payment will be made. Payment for revised quantity will be made at the unit price bid for that Item, except as provided for in Article 10. C. When quantities are revised by a change in design approved by the City, by Change Order, or to correct an error, or to correct an error on the plans, the plans quantity will be increased or decreased by the amount involved in the change, and the 25% variance will apply to the new plans quantity. D. If the total Contract quantity multiplied by the unit price bid for an individual Item is less than $250 and the Item is not originally a plans quantity Item, then the Item may be paid as a plans quantity Item if the City and Contractor agree in writing to fix the final quantity as a plans quantity. E. For callout work or non-site specific Contracts, the plans quantity measurement requirements are not applicable. ARTICLE 12 – CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIME 12.01 Change of Contract Price A. The Contract Price may only be changed by a Change Order. B. The value of any Work covered by a Change Order will be determined as follows: 1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum or unit price (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.01.C.2), and shall include the cost of any secondary impacts that are foreseeable at the time of pricing the cost of Extra Work; or 3. where the Work involved is not covered by unit prices contained in the Contract Documents 416 00 72 00 -1 GENERAL CONDITIONS Page 46 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 and agreement to a lump sum or unit price is not reached under Paragraph 12.01.B.2, on the basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus a Contractor’s fee for overhead and profit (determined as provided in Paragraph 12.01.C). C.Contractor’s Fee:The Contractor’s additional fee for overhead and profit shall be determined as follows: 1. a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under Paragraphs 11.01.A.1, 11.01.A.2. and 11.01.A.3, the Contractor’s additional fee shall be 15 percent except for: 1) rental fees for Contractor’s own equipment using standard rental rates; 2) bonds and insurance; b. for costs incurred under Paragraph 11.01.A.4 and 11.01.A.5, the Contractor’s fee shall be five percent (5%); 1) where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraphs 12.01.C.2.a and 12.01.C.2.b is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of 15 percent of the costs incurred by such Subcontractor under Paragraphs 11.01.A.1 and 11.01.A.2 and that any higher tier Subcontractor and Contractor will each be paid a fee of five percent (5%) of the amount paid to the next lower tier Subcontractor, however in no case shall the cumulative total of fees paid be in excess of 25%; c. no fee shall be payable on the basis of costs itemized under Paragraphs 11.01.A.6, and 11.01.B; d. the amount of credit to be allowed by Contractor to City for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost plus a deduction in Contractor’s fee by an amount equal to five percent (5%) of suchnet decrease. 12.02 Change of Contract Time A. The Contract Time may only be changed by a Change Order. B. No extension of the Contract Time will be allowed for Extra Work or for claimed delay unless the Extra Work contemplated or claimed delay is shown to be on the critical path of the Project Schedule or Contractor can show by Critical Path Method analysis how the Extra Work or claimed delay adversely affects the critical path. 417 00 72 00 -1 GENERAL CONDITIONS Page 47 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 12.03 Delays A. Where Contractor is reasonably delayed in the performance or completionofanypartofthe Work within the Contract Time due to delay beyond the control of Contractor, the Contract Time may be extended in an amount equal to the time lost due to such delay if a Contract Claim is made therefor. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by City, acts or neglect of utility owners or other contractors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described in this Paragraph. B. If Contractor is delayed, City shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. C. Contractor shall not be entitled to an adjustment in Contract Price or Contract Time for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. D. The Contractor shall receive no compensation for delays or hindrances to the Work, except when direct and unavoidable extra cost to the Contractor is caused by the failure of the City to provide information or material, if any, which is to be furnished by the City. ARTICLE 13 – TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Notice of Defects Notice of all defective Work of which City has actual knowledge will be giventoContractor. Defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access to Work City, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs so that they may comply therewith as applicable. 13.03 Tests and Inspections A. Contractor shall give City timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. If Contract Documents, Laws or Regulations of any public body having jurisdiction require any 418 00 72 00 -1 GENERAL CONDITIONS Page 48 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 of the Work (or part thereof) to be inspected, tested, or approved, Contractor shall assume full responsibility for arranging and obtaining such independent inspections, tests, retests or approvals, pay all costs in connection therewith, and furnish City the required certificates of inspection or approval; excepting, however, those fees specifically identified in the Supplementary Conditions or any Texas Department of Licensure and Regulation (TDLR) inspections, which shall be paid as described in the Supplementary Conditions. C. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, re-tests, or approvals required for City’s acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor’s purchase thereof for incorporationintheWork. Such inspections, tests, re-tests, or approvals shall be performed by organizations acceptable to City. D. City may arrange for the services of an independent testing laboratory (“Testing Lab”) to perform any inspections or tests (“Testing”) for any part of the Work, as determined solely by City. 1. City will coordinate such Testing to the extent possible, with Contractor; 2. Should any Testing under this Section 13.03 D result in a “fail”, “did not pass” or other similar negative result, the Contractor shall be responsible for paying for any and all retests. Contractor’s cancellation without cause of City initiated Testing shall be deemed a negative result and require a retest. 3. Any amounts owed for any retest under this Section 13.03 D shall be paid directly to the Testing Lab by Contractor. City will forward all invoices for retests to Contractor. 4. If Contractor fails to pay the Testing Lab, City will not issue Final Payment until the Testing Lab is paid. E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of City, Contractor shall, if requested by City, uncover such Work for observation. F. Uncovering Work as provided in Paragraph 13.03.E shall be at Contractor’s expense. G. Contractor shall have the right to make a Contract Claim regarding any retest or invoice issued under Section 13.03 D. 419 00 72 00 -1 GENERAL CONDITIONS Page 49 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 13.04 Uncovering Work A. If any Work is covered contrary to the Contract Documents or specific instructions by the City, it must, if requested by City, be uncovered for City’s observation and replaced at Contractor’s expense. B. If City considers it necessary or advisable that covered Work be observed by City or inspected or tested by others, Contractor, at City’s request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as City may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. 1. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); or City shall be entitled to accept defective Work in accordance with Paragraph 13.08 in which case Contractor shall still be responsible for all costs associated with exposing, observing, and testing the defective Work. 2. If the uncovered Work is not found to be defective, Contractor shall be allowed an extension of the Contract Time directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. 13.05 City May Stop the Work If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, City may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of City to stop the Work shall not give rise to any duty on the part of City to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 13.06 Correction or Removal of Defective Work A. Promptly after receipt of written notice, Contractor shall correct all defective Work pursuant to an acceptable schedule, whether or not fabricated, installed, or completed, or, if the Work has been rejected by City, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, additional testing, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relatingtosuchcorrection or removal (including but not limited to all costs of repair or replacement of work of others). Failure to require the removal of any defective Work shall not constitute acceptance of such Work. 420 00 72 00 -1 GENERAL CONDITIONS Page 50 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair City’s special warranty and guarantee, if any, on said Work. 13.07 Correction Period A. If within two (2) years after the date of Final Acceptance (or such longer period of time as may be prescribed by the terms of any applicable special guarantee required by the Contract Documents), any Work is found to be defective, or if the repair of any damages to the land or areas made available for Contractor’s use by City or permitted by Laws and Regulations as contemplated in Paragraph 6.10.A is found to be defective, Contractor shall promptly, without cost to City and in accordance with City’s written instructions: 1. repair such defective land or areas; or 2. correct such defective Work; or 3. if the defective Work has been rejected by City, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to otherWork,tothework of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of City’s written instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service before Final Acceptance of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Contract Documents. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work may be required to be extended for an additional period of one year after the end of the initial correction period. City shall provide 30 days written notice to Contractor should such additional warranty coverage be required. Contractor may dispute this requirement by filing a Contract Claim, pursuant to Paragraph 10.06. E. Contractor’s obligations under this Paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitation or repose. 421 00 72 00 -1 GENERAL CONDITIONS Page 51 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 13.08 Acceptance of Defective Work If, instead of requiring correction or removal and replacement of defective Work, City prefers to accept it, City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) attributable to City’s evaluation of and determination to accept such defective Work and for the diminished value of the Work to the extent not otherwise paid by Contractor. If any such acceptance occurs prior to Final Acceptance, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. 13.09 City May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from City to correct defective Work, or to remove and replace rejected Work as required by City in accordance with Paragraph 13.06.A, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, City may, after seven (7) days written notice to Contractor, correct, or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 13.09, City shall proceed expeditiously. In connection with such corrective or remedial action, City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, and incorporate in the Work all materials and equipment incorporated in the Work, stored at the Site or for which City has paid Contractor but which are stored elsewhere. Contractor shall allow City, City’s representatives,agents, consultants, employees, and City’s other contractors, access to the Site to enable City to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) incurred or sustained by City in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and City shall be entitled to an appropriate decrease in the Contract Price. D. Contractor shall not be allowed an extension of the Contract Time because of any delay in the performance of the Work attributable to the exercise of City’s rights and remedies under this Paragraph 13.09. ARTICLE 14 – PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Values The Schedule of Values for lump sum contracts established as provided in Paragraph 2.07 will serve as the basis for progress payments and will be incorporated into a form of Application for Payment 422 00 72 00 -1 GENERAL CONDITIONS Page 52 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 acceptable to City. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.02 Progress Payments A.Applications for Payments: 1. Contractor is responsible for providing all information as required to become a vendor of the City. 2. At least 20 days before the date established in the General Requirements for each progress payment, Contractor shall submit to City for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. 3. If payment is requested on the basis of materials and equipment not incorporatedintheWork but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that City has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate insurance or other arrangements to protect City’s interest therein, all of which must be satisfactory to City. 4. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that previous progress payments received on account of the Work have been applied on account to discharge Contractor’s legitimate obligations associated with prior Applications for Payment. 5. The amount of retainage with respect to progress payments will be as stipulated in the Contract Documents. B.Review of Applications: 1. City will, after receipt of each Application for Payment, either indicate in writing a recommendation of payment or return the Application to Contractor indicating reasons for refusing payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. City’s processing of any payment requested in an Application for Payment will be based on City’s observations of the executed Work, and on City’s review of the Application for Payment and the accompanying data and schedules, that to the best of City’s knowledge: a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Final Acceptance, 423 00 72 00 -1 GENERAL CONDITIONS Page 53 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 the results of any subsequent tests called for in the Contract Documents, a final determination of quantities and classifications for Work performed under Paragraph 9.05, and any other qualifications stated in the recommendation). 3. Processing any such payment will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to City in the Contract Documents; or b. there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by City or entitle City to withhold payment to Contractor, or c. Contractor has complied with Laws and Regulations applicable to Contractor’s performance of the Work. 4. City may refuse to process the whole or any part of any payment because of subsequently discovered evidence or the results of subsequent inspections or tests, and revise or revoke any such payment previously made, to such extent as may be necessary to protect City from loss because: a. the Work is defective, or the completed Work has been damaged by the Contractororhis subcontractors, requiring correction or replacement; b. discrepancies in quantities contained in previous applications for payment; c. the Contract Price has been reduced by Change Orders; d. City has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or e. City has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A. C.Retainage: 1. For all contracts, retainage shall be five percent (5%). D.Liquidated Damages: For each calendar day that any work shall remain uncompleted after the time specified in the Contract Documents, the sum per day specified in the Agreement, will be deducted from the monies due the Contractor, not as a penalty, but as liquidated damages suffered by the City. E.Payment:Contractor will be paid pursuant to the requirements of this Article 14 and payment will become due in accordance with the Contract Documents. 424 00 72 00 -1 GENERAL CONDITIONS Page 54 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 F.ReductioninPayment: 1. City may refuse to make payment of the amount requested because: a. Claims have been made against City on account of Contractor’s performance or furnishing of the Work; b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to City to secure the satisfaction and discharge of such Liens; c. there are other items entitling City to a set-off against the amount recommended; or d. City has actual knowledge of the occurrence of any of the events enumerated in Paragraphs 14.02.B.4.a through 14.02.B.4.e or Paragraph 15.02.A. 2. If City refuses to make payment of the amount requested, City will give Contractor written notice stating the reasons for such action and pay Contractor any amount remaining after deduction of the amount so withheld. City shall pay Contractor the amount so withheld, or any adjustment thereto agreed to by City and Contractor, when Contractor remedies the reasons for such action. 425 00 72 00 -1 GENERAL CONDITIONS Page 55 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 14.03 Contractor’s Warranty of Title Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to City no later than the time of payment free and clear of all Liens. 14.04 Partial Utilization A. Prior to Final Acceptance of all the Work, City may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which City, determines constitutes a separately functioning and usable part of the Work that can be used by City for its intended purpose without significant interference with Contractor’s performance of the remainder of the Work. City at any time may notify Contractor in writing to permit City to use or occupy any such part of the Work which City determines to be ready for its intended use, subject to the following conditions: 1. Contractor at any time may notify City in writing that Contractor considers any such part of the Work ready for its intended use. 2. Within a reasonable time after notification as enumerated in Paragraph 14.05.A.1, City and Contractor shall make an inspection of that part of the Work to determine its status of completion. If City does not consider that part of the Work to be substantially complete, City will notify Contractor in writing giving the reasons therefor. 3. Partial Utilization will not constitute Final Acceptance by City. 14.05 Final Inspection A. Upon written notice from Contractor that the entire Work is complete in accordance with the Contract Documents: 1. City will promptly schedule a Final Inspection with Contractor. 2. City will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. B. City reserves the right to deny request for Final Inspection if City determines that the entire Work is not sufficiently complete to warrant a Final Inspection. 14.06 Final Acceptance Upon completion by Contractor to City’s satisfaction, of any additional Work identified in the Final Inspection, City will issue to Contractor a letter of Final Acceptance. 426 00 72 00 -1 GENERAL CONDITIONS Page 56 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 14.07 Final Payment A.Application for Payment: 1. Upon Final Acceptance, and in the opinion of City, Contractor may make an application for final payment following the procedure for progress payments in accordancewiththe Contract Documents. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.03; b. consent of the surety, if any, to final payment; c. a list of all pending or released Damage Claims against City that Contractor believes are unsettled; and d. affidavits of payments and complete and legally effective releases or waivers (satisfactory to City) of all Lien rights arising out of or Liens filed in connection with the Work. B. Payment Becomes Due: 1. After City’s acceptance of the Application for Payment and accompanying documentation, requested by Contractor, less previous payments made and any sum City is entitled, including but not limited to liquidated damages, will become due and payable. 2. After all Damage Claims have been resolved: a. directly by the Contractor or; b. Contractor provides evidence that the Damage Claim has been reported to Contractor’s insurance provider for resolution. 3. The making of the final payment by the City shall not relieve the Contractor of any guarantees or other requirements of the Contract Documents which specifically continue thereafter. 14.08 Final Completion Delayed and Partial Retainage Release A. If final completion of the Work is significantly delayed, and if City so confirms, City may, upon receipt of Contractor’s final Application for Payment, 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 to be held by City for Work not fully completed or correctedislessthan the retainage stipulated in Paragraph 14.02.C, and if bonds have been furnished as required in Paragraph 5.02, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to City with the Application for such payment. Such payment shall be made under the terms and conditions 427 00 72 00 -1 GENERAL CONDITIONS Page 57 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 governing final payment, except that it shall not constitute a waiver of Contract Claims. B.Partial Retainage Release. For a Contract that provides for a separate vegetative establishment and maintenance, and test and performance periods following the completion of all other construction in the Contract Documents for all Work locations, the City may release a portion of the amount retained provided that all other work is completed as determinedbytheCity.Before the release, all submittals and final quantities must be completed and accepted for all other work. An amount sufficient to ensure Contract compliance will be retained. 14.09 Waiver of Claims The acceptance of final payment will constitute a release of the City from all claims or liabilities under the Contract for anything done or furnished or relating to the work under the Contract Documents or any act or neglect of City related to or connected with the Contract. ARTICLE 15 – SUSPENSION OF WORK AND TERMINATION 15.01 City May Suspend Work A. At any time and without cause, City may suspend the Work or any portion thereof by written notice to Contractor and which may fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. During temporary suspension of the Work covered by these Contract Documents, for any reason, the City will make no extra payment for stand-by time of construction equipment and/or construction crews. B. Should the Contractor not be able to complete a portion of the Project duetocausesbeyondthe control of and without the fault or negligence of the Contractor, and should it be determined by mutual consent of the Contractor and City that a solution to allow construction to proceed is not available within a reasonable period of time, Contractor may request an extension in Contract Time, directly attributable to any such suspension. C. If it should become necessary to suspend the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily nor become damaged in any way, and he shall take every precaution to prevent damage or deterioration of the work performed;he shall provide suitable drainage about the work, and erect temporary structures where necessary. D. Contractor may be reimbursed for the cost of moving his equipment off the job and returning the necessary equipment to the job when it is determined by the City that construction may be resumed. Such reimbursement shall be based on actual cost to the Contractor of moving the equipment and no profit will be allowed. Reimbursement may not be allowed if the equipment is moved to another construction project for the City. 15.02 City May Terminate for Cause A. The occurrence of any one or more of the following events by way of example, but not of 428 00 72 00 -1 GENERAL CONDITIONS Page 58 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 limitation, may justify termination for cause: 1. Contractor’s persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment, failure to adhere to the Project Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04. 2. Contractor’s disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor’s repeated disregard of the authority of City; or 4. Contractor’s violation in any substantial way of any provisions of the Contract Documents; or 5. Contractor’s failure to promptly make good any defect in materials or workmanship, or defects of any nature, the correction of which has been directed in writing by the City; or 6. Substantial indication that the Contractor has made an unauthorized assignment of the Contract or any funds due therefrom for the benefit of any creditor or for any other purpose; or 7. Substantial evidence that the Contractor has become insolvent or bankrupt, or otherwise financially unable to carry on the Work satisfactorily; or 8. Contractor commences legal action in a court of competent jurisdiction against the City. B. If one or more of the events identified in Paragraph 15.02A. occur, City will provide written notice to Contractor and Surety to arrange a conference with Contractor and Surety to address Contractor's failure to perform the Work. Conference shall be held not later than 15 days, after receipt of notice. 1. If the City, the Contractor, and the Surety do not agree to allow the Contractor to proceed to perform the construction Contract, the City may, to the extent permitted by Laws and Regulations, declare a Contractor default and formally terminate the Contractor's right to complete the Contract. Contractor default shall not be declared earlier than 20 days after the Contractor and Surety have received notice of conference to address Contractor's failure to perform the Work. 2. If Contractor's services are terminated, Surety shall be obligated to take over and perform the Work. If Surety does not commence performance thereof within 15 consecutive calendar days after date of an additional written notice demanding Surety's performance of its obligations, then City, without process or action at law, may take over any portion of the Work and complete it as described below. a. If City completes the Work, City may exclude Contractor and Surety from the site and take possession of the Work, and all materials and equipment incorporated into the 429 00 72 00 -1 GENERAL CONDITIONS Page 59 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Work stored at the Site or for which City has paid Contractor or Surety but which are stored elsewhere, and finish the Work as City may deem expedient. 3. Whether City or Surety completes the Work, Contractor shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds all claims, costs, losses and damages sustained by City arising out of or resulting from completing the Work, such excess will be paid to Contractor. If such claims, costs, losses and damages exceed such unpaid balance, Contractor shall pay the difference to City. Such claims, costs, losses and damages incurred by City will be incorporated in a Change Order, provided that when exercising any rights or remedies under this Paragraph, City shall not be required to obtain the lowest price for the Work performed. 4. Neither City, nor any of its respective consultants, agents, officers,directors or employees shall be in any way liable or accountable to Contractor or Surety for the method by which the completion of the said Work, or any portion thereof, may be accomplished or for the price paid therefor. 5. City, notwithstanding the method used in completing the Contract, shall not forfeit the right to recover damages from Contractor or Surety for Contractor's failure to timely complete the entire Contract. Contractor shall not be entitled to any claim on account of the method used by City in completing the Contract. 6. Maintenance of the Work shall continue to be Contractor's and Surety's responsibilities as provided for in the bond requirements of the Contract Documents or any special guarantees provided for under the Contract Documents or any other obligations otherwise prescribed by law. C. Notwithstanding Paragraphs 15.02.B, Contractor’s services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. D. Where Contractor’s services have been so terminated by City, the termination will not affect any rights or remedies of City against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by City will not release Contractor from liability. E. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.02, the termination procedures of that bond shall not supersede the provisions of this Article. 15.03 City May Terminate For Convenience A. City may, without cause and without prejudice to any other right or remedy of City, terminate the Contract. Any termination shall be effected by mailing a notice of the termination to the 430 00 72 00 -1 GENERAL CONDITIONS Page 60 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Contractor specifying the extent to which performance of Work under the contract is terminated, and the date upon which such termination becomes effective. Receipt of the notice shall be deemed conclusively presumed and established when the letter is placed in the United States Postal Service Mail by the City. Further, it shall be deemed conclusively presumed and established that such termination is made with just cause as therein stated; and no proof in any claim, demand or suit shall be required of the City regarding such discretionary action. B. After receipt of a notice of termination, and except as otherwise directed by the City, the Contractor shall: 1. Stop work under the Contract on the date and to the extent specified in the notice of termination; 2. place no further orders or subcontracts for materials, services or facilities except as may be necessary for completion of such portion of the Work under the Contract as is not terminated; 3. terminate all orders and subcontracts to the extent that they relate to the performance of the Work terminated by notice of termination; 4. transfer title to the City and deliver in the manner, at the times, and to the extent, if any, directed by the City: a. the fabricated or unfabricated parts, Work in progress, completed Work, supplies and other material produced as a part of, or acquired in connection with the performance of, the Work terminated by the notice of the termination; and b. the completed, or partially completed plans, drawings, information and other property which, if the Contract had been completed, would have been required to be furnished to the City. 5. complete performance of such Work as shall not have been terminated by the notice of termination; and 6. take such action as may be necessary, or as the City may direct, for the protection and preservation of the property related to its contract which is in the possession of the Contractor and in which the owner has or may acquire the rest. C. At a time not later than 30 days after the termination date specified in the notice of termination, the Contractor may submit to the City a list, certified as to quantity and quality, of any or all items of termination inventory not previously disposed of, exclusive of items the disposition of which has been directed or authorized by City. D. Not later than 15 days thereafter, the City shall accept title to such items provided, that the list 431 00 72 00 -1 GENERAL CONDITIONS Page 61 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 submitted shall be subject to verification by the City upon removal of the items or, if the items are stored, within 45 days from the date of submission of the list, and any necessary adjustments to correct the list as submitted, shall be made prior to final settlement. E. Not later than 60 days after the notice of termination, the Contractor shall submit his termination claim to the City in the form and with the certification prescribed by the City. Unless an extension is made in writing within such 60 day period by the Contractor, and granted by the City, any and all such claims shall be conclusively deemed waived. F. In such case, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; and 3. reasonable expenses directly attributable to termination. G. In the event of the failure of the Contractor and City to agree upon the whole amount to be paid to the Contractor by reason of the termination of the Work, the City shall determine, on the basis of information available to it, the amount, if any, due to the Contractor by reason of the termination and shall pay to the Contractor the amounts determined. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. ARTICLE 16 – DISPUTE RESOLUTION 16.01 Methods and Procedures A. Either City or Contractor may request mediation of any Contract Claim submitted for a decision under Paragraph 10.06 before such decision becomes final and binding. The request for mediation shall be submitted to the other party to the Contract. Timely submission of the request shall stay the effect of Paragraph 10.06.E. B. City and Contractor shall participate in the mediation process in good faith. The process shall be commenced within 60 days of filing of the request. C. If the Contract Claim is not resolved by mediation, City’s action under Paragraph 10.06.C or a denial pursuant to Paragraphs 10.06.C.3 or 10.06.D shall become final and binding 30 days after termination of the mediation unless, within that time period, City or Contractor: 1. elects in writing to invoke any other dispute resolution process provided for in the 432 00 72 00 -1 GENERAL CONDITIONS Page 62 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 Supplementary Conditions; or 2. agrees with the other party to submit the Contract Claim to another dispute resolution process; or 3. gives written notice to the other party of the intent to submit the Contract Claim to a court of competent jurisdiction. ARTICLE 17 – MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if: 1. delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended; or 2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 3. delivered by electronic means to or from the Project Manager. B. Business address changes must be promptly made in writing to the other party. C. Whenever the Contract Documents specifies giving notice by electronic means such electronic notice shall be deemed sufficient upon confirmation of receipt by the receiving party. 17.02 Computation of Times When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday the next Working Day shall become the last day of the period. 17.03 Cumulative Remedies The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. 433 00 72 00 -1 GENERAL CONDITIONS Page 63 of 63 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised September 20, 2018 17.04 Survival of Obligations All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor. 17.05 Headings Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. 434 00 73 00 - 1 SUPPLEMENTARY CONDITIONS Page 1 of 5 CITY OF DENTON IFB# 7163 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS PMO# 10023 Revised September 20, 2018 SECTION 00 73 00 1 SUPPLEMENTARY CONDITIONS 2 TO 3 GENERAL CONDITIONS 4 5 6 Supplementary Conditions 7 8 These Supplementary Conditions modify and supplement Section 00 72 00 - General Conditions, and other 9 provisions of the Contract Documents as indicated below. All provisions of the General Conditions that are 10 modified or supplemented remain in full force and effect as so modified or supplemented. All provisions 11 of the General Conditions which are not so modified or supplemented remain in full force and effect. 12 13 Defined Terms 14 15 The terms used in these Supplementary Conditions which are defined in the General Conditions have the 16 meaning assigned to them in the General Conditions, unless specifically noted herein. 17 18 Modifications and Supplements 19 20 The following are instructions that modify or supplement specific paragraphs in the General Conditions and 21 other Contract Documents. 22 23 SC-4.01A 24 25 Easement limits shown on the Drawing are approximate and were provided to establish a basis for bidding. 26 Upon receiving the final easements descriptions, Contractor shall compare them to the lines shown on the 27 Contract Drawings. 28 29 SC-4.01A.1., “Availability of Lands” 30 31 The following is a list of known outstanding right-of-way, and/or easements to be acquired, if any as of 32 May 2020: 33 Outstanding Right-Of-Way, and/or Easements to Be Acquired 34 PARCEL NUMBER OWNER TARGET DATE OF POSSESSION <If there is none then write “None”> The Contractor understands and agrees that the dates listed above are estimates only, are not guaranteed, 35 and do not bind the City. 36 37 If Contractor considers the final easements provided to differ materially from the representations on the 38 Contract Drawings, Contractor shall within five (5) Business Days and before proceeding with the Work, 39 notify City in writing associated with the differing easement line locations. 40 41 SC-4.01A.2, “Availability of Lands” 42 43 Utilities or obstructions to be removed, adjusted, and/or relocated 44 45 435 00 73 00 - 2 SUPPLEMENTARY CONDITIONS Page 2 of 5 CITY OF DENTON IFB# 7163 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS PMO# 10023 Revised September 20, 2018 The following is list of utilities and/or obstructions that have not been removed, adjusted, and/or relocated 1 as of May 2020: 2 3 EXPECTED OWNER UTILITY AND LOCATION TARGET DATE OF ADJUSTMENT Frontier W Hickory Street TBD ATMOS W Hickory Street TBD DME W Hickory Street TBD The Contractor understands and agrees that the dates listed above are estimates only, are not guaranteed, 4 and do not bind the City. 5 6 SC-4.02A., “Subsurface and Physical Conditions” 7 8 The following are reports of explorations and tests of subsurface conditions at the site of the Work: 9 10 A Report No. H-118-0228, dated February 26,2019, prepared by Gee Consultants, Inc., a consultant of the 11 City, providing additional information on subsurface soil conditions and paving recommendations. 12 13 The following are drawings of physical conditions in or relating to existing surface and subsurface 14 structures (except Underground Facilities) which are at or contiguous to the site of the Work: 15 NONE 16 17 SC-4.06A., “Hazardous Environmental Conditions at Site” 18 19 The following are reports and drawings of existing hazardous environmental conditions known to the City: 20 NONE 21 22 SC-5.03A., “Certificates of Insurance” 23 24 The entities listed below are "additional insureds as their interest may appear" including their respective 25 officers, directors, agents and employees. 26 27 (1) City 28 (2) Consultant: Teague Nall & Perkins, Inc., Lee Engineering, Inc. 29 (3) Other: NONE 30 31 SC-5.04A., “Contractor’s Insurance” 32 33 The limits of liability for the insurance required by Paragraph GC-5.04 shall provide the following 34 coverages for not less than the following amounts or greater where required by laws and regulations: 35 36 5.04A. Workers' Compensation, under Paragraph GC-5.04A. 37 38 Statutory limits 39 Employer's liability 40 $1,000,000 each accident/occurrence 41 $1,000,000 Disease - each employee 42 $1,000,000 Disease - policy limit 43 44 SC-5.04B., “Contractor’s Insurance” 45 46 436 00 73 00 - 3 SUPPLEMENTARY CONDITIONS Page 3 of 5 CITY OF DENTON IFB# 7163 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS PMO# 10023 Revised September 20, 2018 5.04B. Commercial General Liability, under Paragraph GC-5.04B. Contractor's Liability Insurance 1 under Paragraph GC-5.04B., which shall be on a per project basis covering the Contractor with 2 minimum limits of: 3 4 $2,000,000 each occurrence 5 $4,000,000 aggregate limit 6 7 The policy must have an endorsement (Amendment – Aggregate Limits of Insurance) making the 8 General Aggregate Limits apply separately to each job site. 9 10 The Commercial General Liability Insurance policies shall provide “X”, “C”, and “U” coverage’s. 11 Verification of such coverage must be shown in the Remarks Article of the Certificate of Insurance. 12 13 SC 5.04C., “Contractor’s Insurance” 14 5.04C. Automobile Liability, under Paragraph GC-5.04C. Contractor’s Liability Insurance under 15 Paragraph GC-5.04C., which shall be in an amount not less than the following amounts: 16 17 (1) Automobile Liability - a commercial business policy shall provide coverage on "Any Auto", 18 defined as autos owned, hired and non-owned. 19 20 $2,000,000 each accident on a combined single limit basis. 21 22 SC-5.04D., “Contractor’s Insurance” 23 24 The Contractor’s construction activities will require its employees, agents, subcontractors, equipment, and 25 material deliveries to cross railroad properties and tracks, or perform work within 25 feet of the center line 26 of tracks: NONE. 27 28 The Contractor shall conduct its operations on railroad properties in such a manner as not to interfere with, 29 hinder, or obstruct the railroad company in any manner whatsoever in the use or operation of its/their trains 30 or other property. Such operations on railroad properties may require that Contractor to execute a “Right of 31 Entry Agreement” with the particular railroad company or companies involved, and to this end the 32 Contractor should satisfy itself as to the requirements of each railroad company and be prepared to execute 33 the right-of-entry (if any) required by a railroad company. The requirements specified herein likewise relate 34 to the Contractor’s use of private and/or construction access roads crossing said railroad company’s 35 properties. 36 37 The Contractual Liability coverage required by Paragraph 5.04D of the General Conditions shall provide 38 coverage for not less than the following amounts, issued by companies satisfactory to the City and to the 39 Railroad Company for a term that continues for so long as the Contractor’s operations and work cross, 40 occupy, or touch railroad property: 41 42 (1) General Aggregate: 43 44 (2) Each Occurrence: 45 46 Required for this Contract X Not required for this Contract 47 48 With respect to the above outlined insurance requirements, the following shall govern: 49 50 1. Where a single railroad company is involved, the Contractor shall provide one insurance policy in 51 the name of the railroad company. However, if more than one grade separation or at-grade 52 crossing is affected by the Project at entirely separate locations on the line or lines of the same 53 railroad company, separate coverage may be required, each in the amount stated above. 54 55 437 00 73 00 - 4 SUPPLEMENTARY CONDITIONS Page 4 of 5 CITY OF DENTON IFB# 7163 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS PMO# 10023 Revised September 20, 2018 2. Where more than one railroad company is operating on the same right-of-way or where several 1 railroad companies are involved and operated on their own separate rights-of-way, the Contractor 2 may be required to provide separate insurance policies in the name of each railroad company. 3 4 3. If, in addition to a grade separation or an at-grade crossing, other work or activity is proposed on a 5 railroad company’s right-of-way at a location entirely separate from the grade separation or at-6 grade crossing, insurance coverage for this work must be included in the policy covering the grade 7 separation. 8 9 4. If no grade separation is involved but other work is proposed on a railroad company’s right-of-10 way, all such other work may be covered in a single policy for that railroad, even though the work 11 may be at two or more separate locations. 12 13 No work or activities on a railroad company’s property to be performed by the Contractor shall be 14 commenced until the Contractor has furnished the City with an original policy or policies of the insurance 15 for each railroad company named, as required above. All such insurance must be approved by the City and 16 each affected Railroad Company prior to the Contractor’s beginning work. 17 18 The insurance specified above must be carried until all Work to be performed on the railroad right-of-way 19 has been completed and the grade crossing, if any, is no longer used by the Contractor. In addition, 20 insurance must be carried during all maintenance and/or repair work performed in the railroad right-of-way. 21 Such insurance must name the railroad company as the insured, together with any tenant or lessee of the 22 railroad company operating over tracks involved in the Project. 23 24 SC-6.09., “Permits and Utilities” 25 26 SC-6.09A., “Contractor obtained permits and licenses” 27 The following are known permits and/or licenses required by the Contract to be acquired by the Contractor: 28 NONE. 29 30 SC-6.09B. “City obtained permits and licenses” 31 The following are known permits and/or licenses required by the Contract to be acquired by the City: 32 NONE 33 34 SC-6.09C. “Outstanding permits and licenses” 35 36 The following is a list of known outstanding permits and/or licenses to be acquired, if any as of May 2020: 37 38 Outstanding Permits and/or Licenses to Be Acquired 39 OWNER PERMIT OR LICENSE AND LOCATION TARGET DATE OF POSSESSION NONE 40 SC-7.02., “Coordination” 41 42 The individuals or entities listed below have contracts with the City for the performance of other work at 43 the Site: 44 45 Vendor Scope of Work Coordination Authority NONE 46 47 438 00 73 00 - 5 SUPPLEMENTARY CONDITIONS Page 5 of 5 CITY OF DENTON IFB# 7163 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS PMO# 10023 Revised September 20, 2018 SC-8.01, “Communications to Contractor” 1 2 NONE 3 4 SC-9.01., “City’s Project Manager” 5 6 The City’s Project Manager for this Contract is Kyle Pedigo, or his/her successor pursuant to written 7 notification from the City Engineer. 8 9 SC-13.03C., “Tests and Inspections” 10 11 Testing required per City standards. 12 13 SC-16.01C.1, “Methods and Procedures” 14 15 NONE 16 17 END OF SECTION Revision Log DATE NAME SUMMARY OF CHANGE 439 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. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 440 Docusign Transmittal Coversheet File Name Purchasing Contact Contract Expiration DocuSign Envelope ID: 1EB48060-9B84-4260-9480-FC81CC2301AE CO #1 West Hickory St. Paving, Lighting & Drainage Improvements 7163 Lori Hewell n/a FILE 441 Contractor:2L Construction, L.L.C. 200 Boyd Business Pkwy Boyd, TX 76023 940.433.2670 W. Hickory St. Lighting, Paving & Drainage ImprovementsCHANGE ORDER NO.1 7163 PO #: 0 180023 Date Prepared: 11/13/20 Contract BID Amount:1,828,099.00$ 5% Contigency Amount:91,404.95$ Prior Approved CAA's:-$ Available Contingency:91,404.95$ 11,554.00$ 0 Contingency Remaining:79,850.95$ 270 Item No.Spec. Section No. UOM BID QTY +/- QTY Unit Price Extended Price 9 ST1 SF 7,999 1,002 2.00$ 2,004.00$ 26 ST16 SY 430 17 65.00$ 1,105.00$ 27 ST16 SY 361 5 77.00$ 385.00$ 28 ST17 SY 218 92 80.00$ 7,360.00$ 7 ST1 LF 3,133 25 7.00$ 175.00$ 17 ST7 LF 3,418 25 21.00$ 525.00$ $11,554.00 LS ‐$ ‐$ ‐$ ‐$ ‐$ ‐$ ‐$ ‐$ $0.00 Item No Spec. Section No. UOM BID QTY +/- QTY Unit Price Extended Price ‐$ ‐$ ‐$ $0.00 ‐$ ‐$ ‐$ ‐$ $0.00 W. Hickory St. Lighting, Paving & Drainage Improve $11,554.00 Current Contract Amount w CO's:1,919,503.95$ CITY OF DENTON CHANGE ORDER FORM City of Denton - Capital Projects 901-A Texas Street Denton, TX 76209 Kyle Pedigo, Project Manager Project: IFB# CIP/ENG# Prior Approved Other Funded CO's:-$ This CO Other Funding Request:$0.00 Total Change Request:11,554.00$ This CAA Request:Current Completion:7/2/2021 Days +/- by: New Completion:7/2/2021 New Contract Days: PROJECT SCOPE AND REASON FOR CHANGE Description of work included in Contract: Concrete driveway approaches at 1023, 1005, 921, 919, and 911 are to be extended to remove cracked concrete surface. NEW ITEMS OF WORK 6" Curb and 18" Gutter Reason for change: Driveway enterances were in poor condition before construction began. Removal of the entrance sections has caused additional cracking and deteoriation. Concrete limits need to be extended to deliver an adequate product. CONTINGENCY ALLOWANCE AUTHORIZED (CAA) CONTRACT CHANGES QUANTITY CHANGES TO EXISTING ITEMS Description of work Remove Concrete Drive Approach 6" Concrete Drive Approach 8" Concrete Driveway Approach 1005 Hickory St. Concrete Driveway Approach Remove Concrete Curb and Gutter 64.00$ TOTAL OTHER FUNDED QTY CHANGES: NEW ITEMS OF WORK Contingency funds are used at City's descretion per contract spec language TOTAL CAA NEW ITEMS: OTHER FUNDED CONTRACT CHANGES (CO) QUANTITY CHANGES TO EXISTING ITEMS Description of work NEW ITEMS OF WORK TOTAL OTHER FUNDED NEW ITEMS: TOTAL CHANGE ORDER #1: DocuSign Envelope ID: 1EB48060-9B84-4260-9480-FC81CC2301AE 442 1,919,503.95$ $11,554.00 $0.00 $1,919,503.95 13% 0.000% Title Contract % Changes: Contract Amount: Total CO's: Revised Contract Amount: nt CAA approved to date: Total CAA's: THE AFOREMENTIONED CHANGE, AND WORK AFFECTED THEREBY, IS SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. 13. SUBMITTED BY: Project Manager 14. ACCEPTED BY CITY ENGINEER/DIRECTOR OF CAPITAL PROJECTS Signature 15. ACCEPTED BY CONTRACTOR: ________________ 16. PURCHASING: Signature Signature DocuSign Envelope ID: 1EB48060-9B84-4260-9480-FC81CC2301AE President 443 Docusign Transmittal Coversheet File Name Purchasing Contact Contract Expiration DocuSign Envelope ID: 6A720E50-167F-43CD-8B25-E5E71E1022D8 N/A Cori Power 7163 - West Hickory Improvements CO#2 444 Contractor:2L Construction, L.L.C. 200 Boyd Business Pkwy Boyd, TX 76023 940.433.2670 W. Hickory St. Lighting, Paving & Drainage ImprovementsCHANGE ORDER NO.2 7163 PO #:194268 180023 Date Prepared:11/13/20 Contract BID Amount:1,828,099.00$ 5% Contigency Amount:91,404.95$ Prior Approved CAA's:11,554.00$ Available Contingency:79,850.95$ 22,740.50$ 64 Contingency Remaining:57,110.45$ 334 Item No.Spec. Section No.UOM BID QTY +/- QTY Unit Price Extended Price 18 ST8 SF 15,695 -330 5.50$ (1,815.00)$ 19 ST9 SF 1,553 863 12.00$ 10,356.00$ 8 ST1 SF 12,975 533 1.50$ 799.50$ 48 W2 EA 12 8 850.00$ 6,800.00$ 54 SS1 EA 8 6 1,100.00$ 6,600.00$ -$ $22,740.50 -$ -$ $0.00 Item No.Spec. Section No.UOM BID QTY +/- QTY Unit Price Extended Price -$ -$ -$ $0.00 -$ -$ -$ -$ $0.00 W. Hickory St. Lighting, Paving & Drainage Improvements $22,740.50 1,828,099.00$ $34,294.50 $1,862,393.50 1.876% Revised Contract Amount: Percent Changes: TOTAL CHANGE ORDER #2: Appropriate Signatory lines Original BID/Contract Amount: will be added by Purchasing Total CAA's & CO's: NEW ITEMS OF WORK TOTAL OTHER FUNDED NEW ITEMS: QUANTITY CHANGES TO EXISTING ITEMS Description of work TOTAL OTHER FUNDED QTY CHANGES: Contingency funds are used at City's descretion per contract spec language TOTAL CAA NEW ITEMS: OTHER FUNDED CONTRACT CHANGES (CO) 4" Concrete Sidewalk Monolithic Concrete Sidewalk & Wall Curb Remove Concrete Sidewalk and Ramps Adjust Water Service Adjust Sewer Service Reason for change: Additional sidewalk wall needed at 1000, 1004, 1010, and 1022 W. Hickory due to steep grades of adjoining yards. Regrading per plan would have resulted in a slope approaching 45 degrees and adversely impacted the residents. Additional existing sidewalk at the NE corner of Welch and W. Hickory had to be adjusted to meet ADA grades. Water and sewer services along the North side of W. Hickory between Welch and Bernard were shallower than expected and needed to be adjusted due to soil mixing operation. CONTINGENCY ALLOWANCE AUTHORIZED (CAA) CONTRACT CHANGES QUANTITY CHANGES TO EXISTING ITEMS Description of work New Completion:9/4/2021 New Contract Days: PROJECT SCOPE AND REASON FOR CHANGE Description of work included in Contract: Construction of roadway, sidewalk, drainage and pedestrian lighting improvements along W. Hickory St. between Welch and Carroll. Total Change Request:22,740.50$ This CAA Request:Current Completion:7/2/2021 Days +/- by: -$ Current Contract Amount w CO's:1,919,503.95$ This CO Other Funding Request:-$ Kyle Pedigo, Project Manager Project: IFB# CIP/ENG# Prior Approved Other Funded CO's: CITY OF DENTON CHANGE ORDER FORM City of Denton - Capital Projects 901-A Texas Street Denton, TX 76209 DocuSign Envelope ID: 6A720E50-167F-43CD-8B25-E5E71E1022D8 445 Title THE AFOREMENTIONED CHANGE, AND WORK AFFECTED THEREBY, IS SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. 13. SUBMITTED BY: Project Manager 14. ACCEPTED BY CITY ENGINEER/DIRECTOR OF CAPITAL PROJECTS Signature 16. PURCHASING: Signature 15. ACCEPTED BY CONTRACTOR: ___________________________ Signature DocuSign Envelope ID: 6A720E50-167F-43CD-8B25-E5E71E1022D8 President 446 2L Construction L.L.C CHANGE ORDER CHANGE ORDER NO.: 3 REV ACCEPTED: The above prices and specifications of this Change Order are satisfactory and are hereby accepted. All work to be performed under the same terms and conditions as specified in original contract unless otherwise stipulated. DATE________________________________________ Date______________________________________ _____________________________________________ __________________________________________ Owner Architect TO: City of Denton Attn: Kyle Pedigo ADDRESS: 901 B Street CITY, STATE, ZIP: Denton, Texas 76209 JOB NAME AND LOCATION: West Hickory Street Paving, Lighting, and Drainage Improvements Additional Sidewalk Wall at 1000, 1004, 1010, and 1022 W Hickory – 1. Deduct 863 SF of 4” Concrete Sidewalk @ $ 5.50 per SF = ($ 4,746.50) 2. Add 863 SF Monolithic Concrete Sidewalk & Wall Curb @ $12 per SF = $ 10,356.00 Additional Demo on the Corner of Welch St 1. Remove 533 SF of Sidewalk @ $ 1.50 per SF = $ 799.50 2. Replace 533 SF of sidewalk @ $ 5.50 per SF= $ 2,931.50 Adjust Water & Sewer Services-Phase 2 1. SS-1 Adjust 6 Sewer Services @ $ 1,100 per Service = $ 6,600.00 2. W2 – Adjust 8 Water Services @ $ 850 per Service = $ 6,800.00 TOTAL ADD.…………………$ 27,487.00 TOTAL DELETE…………….($4,746.50) TOTAL CHANGE ORDER…..…………………………………………………………………………………… $ 22,740.50 Note: This revision becomes part of, and in conformance with, the existing contract. DATE 2L Construction LLC DATE: 3/15/2021 PHONE: 940-349-8425 JOB NUMBER: 20-001 DATE OF EXISTING CONTRACT: July 28, 2020 PREVIOUS CONTRACT AMOUNT REVISED CONTRACT AMOUNT $ 1,931,057.95 .............................. $ 1,953,798.45 P.O. Box 397 Rhome, TX 76078 Tel.: (940) 433-2670 Fax: (940) 433-2120 DocuSign Envelope ID: 6A720E50-167F-43CD-8B25-E5E71E1022D8 447 Docusign Transmittal Coversheet File Name Purchasing Contact Contract Expiration DocuSign Envelope ID: 75CFFB31-513A-4F43-B8FB-5C2539A87C5A Cori Power 7163 W Hickory Improvements - CO#3 N/A 448 Contractor:2L Construction, L.L.C. 200 Boyd Business Pkwy Boyd, TX 76023 940.433.2670 W. Hickory St. Lighting, Paving & Drainage ImprovementsCHANGE ORDER NO.3 7163 CIP/ENG#180023 PO #:194268 Contract BID Amount:1,828,099.00$ 5% Contigency Amount:91,404.95$ 1,919,503.95$ Prior Approved CAA's:34,294.50$ Available Contingency:57,110.45$ 17,901.00$ Orig Contract Days:This CO Days Request:55 Contingency Remaining:39,209.45$ Approved CO Days:New Contract Days:389 Item No.Spec. Section No.UOM BID QTY +/- QTY Unit Price Extended Price 18 ST8 SF 15,695 -1,110 5.50$ (6,105.00)$ 19 ST9 SF 1,553 1,258 12.00$ 15,096.00$ 48 W2 EA 12 7 850.00$ 5,950.00$ -$ $14,941.00 LS 0 1 2,110.00$ 2,110.00$ LS 0 1 850.00$ 850.00$ -$ -$ -$ -$ $2,960.00 $17,901.00 1,828,099.00$ 1,919,503.95$ $52,195.50 $0.00 $1,919,503.95 57.10% 2.86% 0.000% Current Contract Amount w CO's:1,919,503.95$ CITY OF DENTON CHANGE ORDER FORM City of Denton - Capital Projects 901-A Texas Street Denton, TX 76209 Kyle Pedigo, Project Manager Project: IFB# Prior Approved Other Funded CO's:-$ Notice To Proceed Issued:Current Completion Date:New Completion Date: This CO Other Funding Request:-$ Total Change Request:17,901.00$ This CAA Request:270 4" Concrete Sidewalk 64 PROJECT SCOPE AND REASON FOR CHANGE Description of work included in Contract: Construction of roadway, sidewalk, drainage and pedestrian lighting improvements along W. Hickory St. between Welch and Carroll. Reason for change: Additional water line lowerings due to shallow water services, relocation of electric line found to be in conflict with curb inlet, addition of sidewalk curb at 601 and 607 W. Hickory needed due to elevation changes at resident's yards. Additional time needed due to rain delays April - June, material delays associated with lime, and pavement delays. CONTINGENCY ALLOWANCE AUTHORIZED (CAA) CONTRACT CHANGES QUANTITY CHANGES TO EXISTING ITEMS Description of work Contingency funds are used at City's descretion per contract spec language TOTAL CAA NEW ITEMS: Monolithic Concrete Sidewalk & Wall Curb Adjust Water Service NEW ITEMS OF WORK Relocate Electric Line @ Curb Inlet Lower 2" Electric Line @ Driveway near Carroll Percent Changes over NTE: TOTAL CO AMOUNT: 10/5/2020 9/4/2021 10/29/2021 Total NTE Amount : Original BID/Contract Amount: Total CO's : Original Total Not to Exceed Amount: Total CAA's : Revised Contract Amount: % of CAA approved to-date : Total Change Order over original Bid: DocuSign Envelope ID: 75CFFB31-513A-4F43-B8FB-5C2539A87C5A 449 Signatory Lines will be updated by Purchasing if required SUBMITTED BY:_______________________________ ACCEPTED BY CITY ENGINEER/DIRECTOR OF CAPITAL PROJECTS _______________________________ ACCEPTED BY CONTRACTOR: ____________________________________________________________ Name, Title PURCHASING:_______________________________ THE AFOREMENTIONED CHANGE, AND WORK AFFECTED THEREBY, Signature Signature Signature Project Manager IS SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. DocuSign Envelope ID: 75CFFB31-513A-4F43-B8FB-5C2539A87C5A PresidentHarmon R. Fisher 10/1/2021 450 451 ORDINANCE NO. __________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE APPROVAL OF CHANGE ORDER NO. 4 TO THE CONTRACT BETWEEN THE CITY OF DENTON AND 2L CONSTRUCTION, LLC, FOR THE WEST HICKORY STREET PAVING, LIGHTING & DRAINAGE IMPROVEMENTS PROJECT FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (IFB 7163 CHANGE ORDER NO. 4 IN THE NOT-TO-EXCEED AMOUNT OF $219,543.05, FOR A TOTAL CONTRACT AWARD AGGREGATED TO $2,139,047.00). WHEREAS, on July 28, 2020, by Ordinance No. 20-1309, the Council awarded a contract to 2L Construction, LLC, in the amount of $1,919,503.95 for West Hickory Street Paving, Lighting & Drainage Improvements Project; and WHEREAS, on January 6, 2021, Purchasing awarded a Change Order No. 1 to 2L Construction, LLC, in the amount of $11,554.00; and WHEREAS, on April 30, 2021, Purchasing awarded a Change Order No. 2 to 2L Construction, LLC, in the amount of $22,740.50; and WHEREAS, on October 1, 2021, Purchasing awarded a Change Order No. 3 to 2L Construction, LLC, in the amount of $17,901.00; and and WHEREAS, the Staff having recommended, and the City Manager having recommended to the Council that a change order be authorized to amend such contract agreement with respect to the scope of work and an increase in the payment amount; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Change Order No. 4, increasing the amount of the contract between the City and 2L Construction, LLC, which is on file in the office of the Purchasing Agent, in the amount of Two Hundred Nineteen Thousand Five Hundred Forty-Three and 05/100 ($219,543.05) dollars, is hereby approved and the expenditure of funds therefore is hereby authorized in accordance with said change order. The total purchase order amount increases to $2,139,047.00. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. The ordinance was passed and approved by the 452 following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 453 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 11A4AE92-6789-42D7-9B20-027334D6790C 7163 West Hickory Improvements CO#4 Cori Power Not Applicable IFB 454 Contractor:2L Construction, L.L.C. 200 Boyd Business Pkwy Boyd, TX 76023 940.433.2670 W. Hickory St. Lighting, Paving & Drainage Improvements CHANGE ORDER NO.4 7163 CIP/ENG#180023 PO #:194268 1,828,099.00$ 91,404.95$ 52,195.50$ 39,209.45$ 39,209.45$ 365 0.00$ 699 Item No.Spec. Section No.UOM BID QTY +/- QTY Unit Price Extended Price 34 ST23 LF 1,380 299.542 1.20$ 359.45$ $359.45 EA 0 4 2,550.00$ 10,200.00$ LS 0 1 7,500.00$ 7,500.00$ LS 0 1 13,550.00$ 13,550.00$ LS 0 1 7,600.00$ 7,600.00$ $38,850.00 Item No.Spec. Section No.UOM BID QTY +/- QTY Unit Price Extended Price 5 G5 MO 12 10 3,800.00$ 38,000.00$ 6 G6 EA 2 -2 850.00$ (1,700.00)$ 7 ST1 LF 3,133 922 7.00$ 6,454.00$ 8 ST1 SF 12,975 1,989 1.50$ 2,983.50$ 9 ST1 SF 7,999 347 2.00$ 694.00$ 13 ST5 SY 9,800 1,488 7.30$ 10,862.40$ 14 ST5 TONS 343 52 195.00$ 10,140.00$ 15 ST6 SY 8,300 1,138 16.50$ 18,777.00$ 16 ST6 SY 9,600 1,317 27.50$ 36,217.50$ 17 ST7 LF 3,418 901 21.00$ 18,921.00$ 18 ST8 SF 15,695 223 5.50$ 1,226.50$ 19 ST9 SF 1,553 1,154 12.00$ 13,848.00$ 25 ST15 SY 64 172 85.00$ 14,620.00$ 26 ST16 SY 430 214 65.00$ 13,910.00$ 27 ST16 SY 361 24 77.00$ 1,848.00$ 34 ST23 LF 1,380 8.458 1.20$ 10.15$ 40 ST23 LF 446 36 9.25$ 333.00$ 54 SS1 EA 8 3 1,100.00$ 3,300.00$ 56 SD6 LF 750 24 26.00$ 624.00$ Project: IFB# Prior Approved Other Funded CO's:-$ Current Contract Amount w CO's:1,919,503.95$ CITY OF DENTON CHANGE ORDER FORM City of Denton - Capital Projects 901-A Texas Street Denton, TX 76209 Kyle Pedigo, Project Manager Notice To Proceed Issued:Current Completion Date:New Completion Date: 10/5/2020 10/29/2021 10/29/2022 5% Contigency Amount: Contract BID Amount: Approved CO Days:119 New Contract Days: PROJECT SCOPE AND REASON FOR CHANGE Description of work included in Contract: Construction of roadway, sidewalk, drainage and pedestrian lighting improvements along W. Hickory St. between Welch and Carroll. This CO Other Funding Request:219,543.05$ Total Change Request:258,752.50$ This CAA Request: Orig Contract Days:270 Days +/- by: Contingency Remaining: Available Contingency: Prior Approved CAA's: TOTAL CCA QTY CHANGES: NEW ITEMS OF WORK Add D.I. Encasement - Shallow Sewer Service Add Concrete Encasement on Sewer at Williams Reason for change: Final Quantity Reconcilliation. Pavement quantiy additions at Hickory intersections with Welch, Denton, Williams, and Carroll. Sidewalk increases at tie-ins at same intersections. Addition of monolithic sidewalk wall because of yard grades. 2 Junction boxes added to tie in drainage at Carroll and address shallow sewer line penetration at Williams. Encasement of shallow sanitary added per field discussions. Additional traffic control and changeable message boards due to added time to project from field changes. CONTINGENCY ALLOWANCE AUTHORIZED (CAA) CONTRACT CHANGES QUANTITY CHANGES TO EXISTING ITEMS Description of work Type IA 4" Solid White OTHER FUNDED CONTRACT CHANGES (CO) QUANTITY CHANGES TO EXISTING ITEMS Description of work Portable Changeable Message Signs Project Signs Remove Curb and Gutter Additional Cost @ Welch (thicker asphalt, flex base, weekend work) Additional Traffic Control Contingency funds are used at City's descretion per contract spec language TOTAL CAA NEW ITEMS: 6" Curb and 18" Gutter 4" Concrete Sidewalk Monolithic Concrete Sidewalk & Wall Curb 8" Concrete Pvmt (Intersection Apron and Valley Gutter) 6" Concrete Drive Approach 8" Concrete Driveway Approach Remove Concrete Sidewalks and Ramps Remove Concrete Drive Approach 12" Lime Subgrade Treatment Lime at 7% (70 lbs/SY) 3" Type C Surface (PG 64-22) 6" Type B Base (PG 64-22) Type IA 4" Solid White Type VA Pedestrian Crosswalk Adjust Sewer Service Remove Existing Storm Drain DocuSign Envelope ID: 11A4AE92-6789-42D7-9B20-027334D6790C 455 57 SD7 EA 1 1 1,100.00$ 1,100.00$ 58 SD7 EA 5 1 1,000.00$ 1,000.00$ 59 SD1 LF 47 4 77.00$ 308.00$ 60 SD1 LF 85 8 85.00$ 680.00$ 71 SD3 EA 2 1 7,600.00$ 7,600.00$ 72 SD3 EA 1 1 10,500.00$ 10,500.00$ 73 SD5 LF 1,086 6 6.00$ 36.00$ $212,293.05 LS 0 1 7,250.00$ 7,250.00$ $7,250.00 $258,752.50 1,828,099.00$ 1,919,503.95$ $91,404.95 $219,543.05 $2,139,047.00 100.00% 17.01% 11.437% SUBMITTED BY PROJECT MANAGER:_______________________________ ACCEPTED BY CITY ENGINEER/DIRECTOR OF CAPITAL PROJECTS _______________________________ ACCEPTED BY CONTRACTOR: _________________________________________________________________ Name, Title CITY MANAGER:_______________________________ ATTEST: CITY SECRETERY _______________________________ PURCHASING:_______________________________ APPROVED AS TO LEGAL FORM:_______________________________ 15" RCP CL III 18" RCP CL IV 6'x6' Cast in Place Junction Box 6'x10' Cast in Place Junction Box Storm Drain Trench Safety Remove Existing Structures Remove Existing Inlets TOTAL OTHER FUNDED NEW ITEMS: TOTAL CO AMOUNT: Original BID/Contract Amount: Original Total Not to Exceed Amount: Total CAA's : TOTAL OTHER FUNDED QTY CHANGES: NEW ITEMS OF WORK Additional Cost @ Denton & Williams (flexbase, weekend) Signature Signature IS SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. Signature Signature Signature Signature Signature Total CO's : Revised Contract Amount: % of CAA approved to-date : Total Change Order over original Bid: Percent Changes over NTE: THE AFOREMENTIONED CHANGE, AND WORK AFFECTED THEREBY, DocuSign Envelope ID: 11A4AE92-6789-42D7-9B20-027334D6790C PresidentHarmon R. Fisher 456 Certificate Of Completion Envelope Id: 11A4AE92678942D79B20027334D6790C Status: Sent Subject: Please DocuSign: City Council Contract 7163 - West Hickory Improvements CO#4 Source Envelope: Document Pages: 3 Signatures: 5 Envelope Originator: Certificate Pages: 6 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 10/11/2022 9:32:59 AM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 10/11/2022 9:40:42 AM Viewed: 10/11/2022 9:40:53 AM Signed: 10/11/2022 9:41:02 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 10/11/2022 9:41:05 AM Viewed: 10/11/2022 10:32:37 AM Signed: 10/11/2022 10:33:31 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Kyle Pedigo kyle.pedigo@cityofdenton.com Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/11/2022 10:33:34 AM Viewed: 10/11/2022 12:44:53 PM Signed: 10/11/2022 12:45:05 PM Electronic Record and Signature Disclosure: Accepted: 10/11/2022 12:44:53 PM ID: 0b065417-d5c4-4ad5-9eb0-1c11a9f1ce9b Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 10/11/2022 12:45:09 PM Viewed: 10/13/2022 3:13:25 PM Signed: 10/13/2022 3:14:03 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 457 Signer Events Signature Timestamp Harmon R. Fisher chip@2lconstruction.com President Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 142.147.127.142 Sent: 10/13/2022 3:14:06 PM Viewed: 10/13/2022 3:17:08 PM Signed: 10/13/2022 3:18:43 PM Electronic Record and Signature Disclosure: Accepted: 10/13/2022 3:17:08 PM ID: acae36b0-bfbf-4ced-a589-fb98f3c83cbf Rebecca Diviney Rebecca.Diviney@cityofdenton.com Director of Capital Projects/City Engineer Capital Projects/Engineering Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 47.222.20.2 Signed using mobile Sent: 10/13/2022 3:18:48 PM Viewed: 10/13/2022 8:20:59 PM Signed: 10/13/2022 8:21:15 PM Electronic Record and Signature Disclosure: Accepted: 10/13/2022 8:20:59 PM ID: 95428f70-c1d9-40c8-8964-57d3aebbee0e Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/13/2022 8:21:21 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2022 5:16:40 PM ID: 59eb637f-1676-4a1f-93e9-5663c0617a7e In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp 458 Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/11/2022 9:41:06 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 10/13/2022 8:21:18 PM Viewed: 10/17/2022 9:46:02 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Cheyenne Defee cheyenne.defee@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/11/2022 9:40:42 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure 459 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2199,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with Amperon Holdings,Inc.,for load forecasting services for Denton Municipal Electric;providing for the expenditure of funds therefor;and providing an effective date (RFP 8024 - awarded to Amperon Holdings,Inc.,in the three (3)year not-to-exceed amount of $252,000.00).The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™463 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Amperon Holdings, Inc., for load forecasting services for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 8024 – awarded to Amperon Holdings, Inc., in the three (3) year not-to-exceed amount of $252,000.00). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND Denton Municipal Electric (“DME”) is highly dependent on weather forecasting services to manage electric demand. The growing wind and solar generation portfolio adds a considerable dependency on accurate weather forecasting to manage the City of Denton’s electric demand requirements. Weather volatility is a key driver of electric demand and renewable energy output in the short-term and long-term horizon. DME is seeking approval for forecasting service(s) which include Weather Forecasting, Load Forecasting, Wind Forecasting, and Solar Forecasting. The major functions of the Forecasting solution(s) are as follows: 1. Weather Forecasting a. Short-Term Weather (7 Day) b. Mid-Term Weather (15 Day) c. Seasonal Weather 2. Load Forecasting a. Short-Term (1 Day) b. Mid-Term (15 Day) c. Long Term (1 year+) 3. Wind Forecasting a. Intra-Day Forecast b. Short-Term Forecast (2-7 Days) 4. Solar Forecasting a. Intra-Day Forecast b. Short-Term Forecast (2-7 Days) City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 464 If approved, staff will utilize this solution to support effective energy portfolio management operations, increase efficiencies, data collection, increase staff performance, and provide management with reporting data. Request for Proposals was sent to 828 prospective suppliers of this item, including 23 Denton firms. In addition, specifications were placed on the Procurement website for prospective suppliers to download and advertised in the local newspaper. Six (6) proposals were received, references were checked, and proposals were evaluated based upon published criteria including delivery, compliance with specifications, probable performance, and price. Based upon this evaluation, Amperon Holdings, Inc. was ranked the highest and determined to be the best value for the City for load forecasting services. NIGP Code Used for Solicitation: 208, 690, 691, 926 Notifications sent for Solicitation sent in IonWave: 828 Number of Suppliers that viewed Solicitation in IonWave: 44 HUB-Historically Underutilized Business Invitations sent out: 67 SBE-Small Business Enterprise Invitations sent out: 314 Responses from Solicitation: 6 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Amperon Holdings, Inc., for load forecasting services for Denton Municipal Electric, in a three (3) year not-to-exceed amount of $252,000. PRINCIPAL PLACE(S) OF BUSINESS Amperon Holdings, Inc. Houston, TX ESTIMATED SCHEDULE OF PROJECT(S) This is a three (3) year contract. FISCAL INFORMATION These services will be funded from Denton Municipal Electric Power Supply, Energy Management division budget account 6000037804. Requisition #157513 has been entered into the Purchasing software system in the amount of $250,000. The budgeted amount for this item is $252,000. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Pricing Evaluation Exhibit 3: Ordinance and Contract 465 Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Shane Wallin, 940-349-7521. Legal point of contact: Marcella Lunn at 940-349-8333. 466 Amperon Holdings, Inc.Atmospheric G2, LLC Enverus, Inc.Itron Inc.DNV Energy USA, Inc.Maxar Technologies, Inc. Houston, TX Atlanta, GA Austin, TX Liberty Lake, WA Katy, TX Austin, TX $198,000.00 $35,100.00 $246,000.00 $191,059.00 $119,340.00 No bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.60 1.40 4.60 3.80 2.60 1.00 2 Compliance with Specifications 30%30.00 8.40 24.00 16.80 13.20 6.00 3 Probable Performance 25%24.00 7.00 20.00 16.00 10.00 5.00 4 Price, Total Cost of Ownership - 40%6.00 40.00 6.00 7.00 12.00 0.00 64.84 56.80 51.91 43.95 37.56 12.00 Maxar Technologies, Inc.Atmospheric G2, LLC Enverus, Inc DNV Energy USA Inc Amperon Holdings, Inc.Itron Inc. Austin, TX Atlanta, GA Austin, TX Katy, TX Houston, TX Liberty Lake, WA $64,800.00 $66,600.00 $72,000.00 $58,680.00 No Bid No Bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.80 3.40 2.80 2.40 1.20 1.20 2 Compliance with Specifications 30%30.00 15.60 15.60 10.80 7.20 7.20 3 Probable Performance 25%24.00 14.00 13.00 10.00 6.00 6.00 4 Price, Total Cost of Ownership - 40%36.00 35.00 33.00 40.00 0.00 0.00 95.02 68.24 64.00 63.20 14.40 14.40 Maxar Technologies, Inc.Atmospheric G2, LLC Amperon Holdings, Inc.Enverus, Inc DNV Energy USA Inc Itron Inc. Austin, TX Atlanta, GA Houston, TX Austin, TX Katy, TX Liberty Lake, WA $64,800.00 $99,000.00 No Bid No Bid No Bid No Bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.80 4.60 2.20 1.20 1.20 1.20 2 Compliance with Specifications 30%30.00 26.40 8.40 7.20 7.20 7.20 3 Probable Performance 25%24.00 22.00 6.00 6.00 6.00 6.00 4 Price, Total Cost of Ownership - 40%40.00 26.00 0.00 0.00 0.00 0.00 98.80 79.00 16.60 14.40 14.40 14.40 Respondent's Business Name: Principal Place of Business (City and State): Total Score: Weather Forecasting Contract Total: (3 years not including additional Exhibit 2 RFP 8024 - Pricing Evaluation for Forecasting Services Principal Place of Business (City and State): Load Forecasting Services Total Score: Renewable Forecasting Total Score: Respondent's Business Name: Principal Place of Business (City and State): Respondent's Business Name: Contract Total: (3 years not including additional Contract Total: (3 years not including additional 467 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH AMPERON HOLDINGS, INC., FOR LOAD FORECASTING SERVICES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 8024 AWARDED TO AMPERON HOLDINGS, INC., IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $252,000.00). WHEREAS, the City has solicited, received, and evaluated competitive proposals for load forecasting services for Denton Municipal Electric; and WHEREAS, the City Manager, or a designated employee, has received, reviewed, and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and function; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies, Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 8024 Amperon Holdings, Inc. $252,000.00 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. That should the City and person submitting approved and accepted items wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the 468 proposals, the City Manager,or their designated representative,is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR 469 ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 470 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 Yes 8024RFP LOAD FORECASTING SERVICES Christa Christian 471 Contract # 8024 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND AMPERON HOLDINGS, INC. (CONTRACT 8024) THIS CONTRACT is made and entered into this date ______________________, by and between AMPERON HOLDINGS, INC. a DELAWARE corporation, whose address is 2000 Crawford Street, Suite 1300, Houston, TX 77002, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide products and/or services in accordance with the City’s document RFP 8024 – FORECASTING SERVICES – LOAD FORECASTING SERVICES, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit “A”); (b) City of Denton’s RFP 8024 (Exhibit “B” on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit “C”); (d) Insurance Requirements (Exhibit “D”); (e) Certificate of Interested Parties Electronic Filing (Exhibit "E"); (f) Contractor’s Proposal (Exhibit "F"); (g) Form CIQ – Conflict of Interest Questionnaire (Exhibit "G"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as “Contract Documents.” Prohibition on Contracts with Companies Boycotting Israel Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 472 Contract # 8024 Prohibition on Contracts with Companies Boycotting Certain Energy Companies Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. 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. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 473 Contract # 8024 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. AMPERON HOLDINGS, INC. BY: ______________________________ AUTHORIZED SIGNATURE Printed Name: ______________________ Title: _____________________________ __________________________________ PHONE NUMBER __________________________________ EMAIL ADDRESS ___________________________________ TEXAS ETHICS COMMISSION 1295 CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: _______________________________ SARA HENSLEY, CITY MANAGER ATTEST: ROSA RIOS, CITY SECRETARY BY: _______________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _______________________________ THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 2022-939762 713-492-3902 Sean Kelly CEO sean@amperon.co DME General Manager Electric Antonio Puente 474 Contract # 8024 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $252,000. Pricing shall be per Exhibit F attached. 2. The Quantities The quantities indicated on Exhibit F are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 3. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. 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. 4. Price Escalation and De-escalation On Supplier’s request in the form stated herein, the City will implement an escalation/de-escalation price adjustment annually based on these special terms. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) or the manufacturer published pricing list. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. The price will be increased or decreased based upon the annual percentage change in the PPI or the percentage change in the manufacturer’s price list. Should the PPI or manufacturer price list change exceed a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted in accordance with the percent change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre-price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 5. Performance Liquidated Damages DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 475 Contract # 8024 The Contractor shall incur contractual payment losses, as initiated by the City for performance that falls short of specified performance standards as outlined below: • Delivery beyond contracted lead times • Performance below contracted levels (services only) The Contractor shall be assessed a one (1%) percent fee each month when any one of the performance standards outlined above are not met in full. The Contractor shall be assessed a two (2%) percent profit fee each month when any two (2) or more performance standards outlined above are not met in full. At the end of each month, the City will review the monthly reports and determine the percentage of penalty to be assessed to the Contractor’s monthly profit margin. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 476 Contract # 8024 Exhibit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton’s contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City’s Procurement Department and the Supplier. No Terms and Conditions contained in the seller’s proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City’s premises or on public rights-of-way. 1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. PROVISIONING. As soon as reasonably practicable after the Effective Date or as otherwise provided in a statement of work: (i) City shall enable access to necessary energy usage data (“City Data”) in the manner as stipulated by Amperon (or optionally as mutually agreed upon by the parties); and (ii) Amperon shall provide to City the necessary passwords, security protocols, and/or network links to allow City to access the Deliverables. Upon completion of the foregoing (the “PROVISIONING”), City may commence use of the Deliverables. For avoidance of doubt, if City fails to furnish sufficiently clean data, or provide access to industry-standard data sources (as defined by Amperon’s sole and absolute discretion), then Amperon shall have no obligation to deliver the Deliverables until the data and/or access issues are resolved. City will be solely responsible for the accuracy, completeness, and ongoing delivery of the City Data. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 477 Contract # 8024 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City’s service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor’s obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City’s facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it’s Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 478 Contract # 8024 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department’s Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor’s name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor’s registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor’s invoice. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City’s receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City’s agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor’s obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City’s payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 479 Contract # 8024 or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor shall comply with all DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 480 Contract # 8024 requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor’s Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY – TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY – DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 481 Contract # 8024 codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the City’s option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City’s rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer’s warranty, the Contractor shall transfer and assign such manufacturer’s warranty to the City. If for any reason the manufacturer’s warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer’s warranty for the benefit of the City. F. THE DELIVERABLES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR ANY WARRANTIES CONCERNING THE ACCURACY, COMPLETENESS, TIMELINESS OR AVAILABILITY OF THE PLATFORM. 22. WARRANTY – SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City’s rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City’s evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 482 Contract # 8024 the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party’s intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’s default, including, without limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and post-judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. NO EXCESS OBLIGATIONS: In the event the Contract spans multiple fiscal years, the City’s continuing performance under the Contract is contingent upon the appropriation of funds to fulfill the requirements of the Contract by the City Council of the City of Denton. If the City Council of the City of Denton fails to appropriate or allot the necessary funds, City shall issue written notice to Contractor that City may terminate the Contract without penalty, further duty, or obligation 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. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 483 Contract # 8024 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor’s subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-conforming deliverables (where neither defective nor non-conforming include any aspects of accuracy, completeness, timeliness, or availability of the deliverables), negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. CONTRACTOR’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE FEES PAID BY CITY UNDER THE APPLICABLE ORDER IN THE PREVIOUS 12 MONTHS PRIOR TO THE DATE THE CLAIM AROSE. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage’s and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor’s and all subcontractors’ insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers’ compensation coverage written by the Texas Workers’ Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 484 Contract # 8024 as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days’ written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage’s indicated within the Contract. xiv. The insurance coverage’s specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse effect on the Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor’s Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 485 Contract # 8024 (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City’s exercise anywhere in the world of the rights associated with the City’s’ ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor’s breach of any of Contractor’s representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City’s behalf. Further, Contractor agrees that the City’s specifications regarding the deliverables shall in no way diminish Contractor’s warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City’s and/or its licensors’ confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, “Confidential Information”). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: Contractor grants to City a non-exclusive, non-transferable right to use and access the deliverables solely for City’s own internal business purposes. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City’s prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 486 Contract # 8024 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 as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker’s compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however Contractor notifies City of such delegation 30 days prior. 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. The Vendor shall notify the City’s Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of the company or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director’s resolution approving the action, or an executed merger or acquisition agreement. Failure to do so may adversely impact future invoice payments. 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 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 487 Contract # 8024 enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator’s fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year’s Day (observed) Martin Luther King, Jr. Day Memorial Day Juneteenth Independence Day DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 488 Contract # 8024 Labor Day Veterans Day Thanksgiving Friday 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 approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph – 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. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 489 Contract # 8024 B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as 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 1978, dealing with issuance of Form W-2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 490 Contract # 8024 long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City’s standard terms and conditions 4. Purchase order 5. Supplier terms and conditions DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 491 Contract # 8024 Exhibit D INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ▪ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ▪ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. ▪ Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • 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 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 492 Contract # 8024 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: [ ] 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. [ ] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non-owned autos. [ ] Workers’ Compensation Insurance Contractor shall purchase and maintain Workers’ Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 493 Contract # 8024 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’ Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an “occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a “blanket” basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 494 Contract # 8024 Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 495 Contract # 8024 ATTACHMENT 1 [ ] Workers’ Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 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. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 496 Contract # 8024 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 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 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 497 Contract # 8024 other civil actions. K. The contractor’s failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 498 Contract # 8024 Exhibit E Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish 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/filinginfo/1295/ 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 Commission’s website within seven business days. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 499 Contract # 8024 EXHIBIT F DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 500 Amperon Holdings, Inc. 2000 Crawford St Ste 1300 Houston TX 77002 Christa Christian /The City of Denton - Purchasing 901-B Texas Street Ste 290 The City of Denton, TX 76209 USA (Via Ionwave) Re: RFP 8024 (Forecasting Services) Dear Sir or Madam, On behalf of Amperon Holdings, Inc (“Amperon”) I am pleased to provide the attached response to bid invitation 8024 “Forecasting Services” by the City of Denton for the Denton Municipal Electric (DME). Amperon is a leader in providing high performance load forecasting based on data intelligence derived from a mix of weather data (forecast and historical) as well as metered consumption data. Delivering power is increasingly complex, especially for municipalities in a rapidly changing energy environment. That means understanding a more complex supply environment with premise storage, net metering, time-of-use rates, demand response programs, electric vehicles, and a raft of behind-the-meter innovation require a much more sophisticated demand model. Enabling companies to operate effectively in this evolving market is what Amperon was created to do. Some highlights from our proposal include: • $0 Implementation. • Onboard in days not months. • No additional support staff costs. • No infrastructure costs or impact. • We are proven in Texas - 1.6M ERCOT meters and counting. Thank you again for this opportunity to propose our demand forecasting solutions. We look forward to working with the City of Denton team to complete the contracting needed, meet your deadlines, and officially welcome you as an Amperon customer. If you have any questions, please feel free to reach out to me directly at (713) 492-3902 or via email at sean@amperon.co. Regards, CEO Amperon Holdings, Inc. Sean Kelly DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 501 Response to RFP 8024 Forecasting Services for The City of Denton Amperon Holdings, Inc. Prepared by Sean Kelly (sean@amperon.co) Contents Our Solution ...............................................................................................................................1 Included Capabilities ...............................................................................................................1 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 502 Alignment to The City of Denton’s Requirements ....................... Error! Bookmark not defined. Proposed Fee Schedule................................................................................................................4 Appendix A: The City of Denton Visualizations .........................................................................5 Appendix B: Bidders Qualifications & Leadership .....................................................................8 Awards & Recognition ............................................................................................................8 Key Team Members ................................................................................................................8 Appendix C: Client References .................................................. Error! Bookmark not defined. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 503 Our Solution Amperon provides a Software as a Service (SaaS) platform that delivers industry leading analytical capabilities, automated data integrations and extreme scalability with the shortest implementation time in the industry. Some highlights: Amperon delivers the most accurate load forecasts in the industry, forecasting millions of meters every hour, every day, representing over 20 GW of load for Load Serving Entities (LSEs) and providing grid-scale forecasts in major US, Canadian and Australian markets. More than 35 leading LSEs rely on our data to understand changing customer behaviors while managing risk and compliance obligations. They understand that forecasting customer energy needs has never been easy, subject to vagaries of weather and supply, but today it has become tremendously complex. Renewable energy credits, carbon taxes, decarbonization, rooftop PV, premise battery storage, community solar, vehicle electrification, heat pump transition, water heater replacement… the list of challenges goes on. Enabling communities and consumers to successfully operate in a transitioning energy economy is why Amperon is here. In developing this proposal to Denton Municipal Electric (DME) we focused on developing a scope, support and pricing approach that is: Feature Complete. Amperon’s platform represents millions of dollars in investment, thousands of hours of engineering and award-winning data science that has been recognized around the globe. We bring a cutting-edge UX, models proven in the most PV-intense market in the world, economic forecasts that deal with attrition and market uptake, and long-term forecasts that support operational excellence, cash flow, capital spending, compliance and customer engagement functions. Innovative. Amperon is on the cutting edge of innovation in technology and aligning to emerging energy trends. For example, we have been the leader in forecasting the highest rooftop PV penetrated market in the world (Australia), providing our forecasts to the grid operator (AEMO) for over 3 years and building models that deal with the value and burden of PV; weather intermittency, storage carry thru, radiance variability, etc. Our CP Alert platform can deliver Coincidental peak alerts to you or your customers to support energy efficiency and cost effectiveness. Future Forward. The challenge and forecasting in electricity lie Behind the Meter (BTM). Forecasting needs to detect growth in areas like the deployment of PV, EV and storage as well as high load motors/pumps and on-demand hot water. Amperon’s platform provides analytics that break and forecast profile-specific loads and applying their influence/impact to the forecasts themselves. Fast to Deploy. 3 Weeks. Amperon represents millions of dollars in investment and years of engineering and data science excellence by true energy industry professionals that can be deployed in 3 weeks. No custom build, open-source starter kit or leveraged project framework can deliver the capabilities, scale, reliability, and security that Amperon’s SaaS -based platform provides with negligible effort by the DME team. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 504 Constantly Innovating. As an Amperon customer, you enjoy the benefits of new functionality when added to your subscription as it is developed, at no additional cost. Your customer is not static, regulations aren’t static, technology is not static, and the energy eco-system is not static. Why settle for a solution that is? Amperon is your partner for constant innovation, not a contractor for a one-time build. Included Capabilities Short-Term Forecast • Spans 360 hours, updated once per hour. • Track changes in hourly forecast updates over the last 72 hours. • Temperature visualized. • Available via API, FTP upload, or viewed in our visualization dashboard. • Includes weather scenario modeling, where an analyst can input +/-1, +/-3, and +/-5degree deltas from the current weather forecast for the next 7 days, to simulate any specific extreme weather scenario. Mid-Term Forecast • Spans 5 years updated weekly. • Includes weather statistical simulations and scenarios. • Temperature visualized. • Available via API, FTP upload, or viewed in our visualization dashboard. • View forecast by load zone, weather zone, premise type, profile and more. Weather • Updated ERCOT weather across major cities (15 days). • Includes weather scenarios. • Access to PhD Meteorologist, Dr. Mark Shipham. Dashboard Visualization Suite Amperon provides an extensive suite of visualizations for both the mid- and short-term forecasting solutions. Full access to the visualization suite is included with the mid- and shortterm forecasting solutions, with capabilities including: • 360-hour (15 day) forecasts updated hourly. • Hedge overlays. • Settlements through preferred forward curve upload. • Trade capture. • Custom report downloads. • Export of all visualization data to CSV or via API. • Meter level forecast views DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 505 Security & Privacy • Amperon is fully SOC II compliant. • Provides for standard password authentication. • Provides for 2FA enhanced authentication. • Amperon appreciates that customer specific data including SAIDs, historical usages, profile classes, address, enrollments, and drops can dramatically improve forecasts, but we respect your customer’s privacy. Our system is purpose built to segregate data, with confidential data strictly isolated across separate physical database instances and encrypted at rest. DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 506 Proposed Fee Schedule Amperon realizes that municipalities appreciate financial certainty when entering into contracts. Below are the aspects of our costs that you should be aware of related to the proposed modules: • Implementation: There are $0 implementation costs for the implementation and configuration of the Amperon system. • Additional License Fee: There are $0 annual license or per user fees for the Amperon system. • Other Expenses (e.g., network charges, storage charges, CPU charges): There are $0 additional fees. • Platform Fee: 1-Year: $108,000 -or- 3-Year: $216,000 ($72,000/year). Item Description 1 Year Term 3 Year Term Setup $0 $0 AMPRetail DME Territory Short-Term and LongTerm Forecast $8,000/month $6,000/month AMPGrid ERCOT Grid Forecast $1,000/month $0 AMPCast Weather Forecast $0 $0 Total Annual Fee $108,000/year $72,000/year Instead of a complex nickel and dime and upcharge model, Amperon enters multi-year contracts based on what matters to our clients – predictable costs. Appendix A: Visualizations DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 507 Figure 1: Amperon 15-day forecast with temperature overlay for The City of Denton Figure 2: Mid-Term Forecast for The City of Denton (3Years Shown) DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 508 Figure 3: The City of Denton Historical load Figure 4: ERCOT Grid View Forecast with weather scenarios DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 509 Figure 5: ERCOT Weather by City DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 510 Appendix B: Bidders Qualifications & Leadership The Amperon team is comprised of proven leaders in a range of areas including energy market management, energy trading, energy forecasting, AI/machine learning, meteorology, and data engineering. Today, Amperon manages roughly 1 million service points across PJM, ERCOT, NYISO, ISO-NE, MISO, CAISO and AEMO (Australian Power Grid Operator) through our customers in those grid regions. Our customers include a range of cooperatives, municipalities, energy retailers, grid operators, and institutional traders. We have included some of those named in our customer reference section below. As a proven solution, Amperon consistently beats ISO-provided MAPE by as much as 30%. Amperon’s retail-level load obligation forecasts represent a reduction of cost-to-serve of up to 10 percentage points for any given electricity supplier, and our customers tell us they get back hours in their week as they no longer must assemble, correlate and clean various data sets. Awards & Recognition Amperon has received numerous awards and accolades, including, ● International Conference on Machine Learning (ICML). Amperon published an overview of our ERCOT model in the Climate Change Workshop track of this leading AI journal. ● 2018 BFCom Energy Load Forecasting Competition. First place entry. Competitors included 142 data scientists/companies from 26 countries. ● 2019 Urban Future Prize Competition. First place winner, “Smart Grid” track. ● Accepted into ACRE / Urban Future Lab incubator. ● 2021 TEPA (The Energy Professionals Association) Affiliate of the Year ● 2022 Distributech Initiate Winner for Emerging Energy Technology Key Team Members Sean Kelly – Chief Executive Officer and cofounder Sean is a veteran in the energy markets and Amperon’s CEO. Since 2005 Sean has been active in the evolving energy trading markets, working for Tenaska, Lehman, EDF, and E.On, as well as several family offices and proprietary trading firms. While at EDF, he led the transition of two nuclear plants (Nine Mile and Ginna) into the NYISO market, then led the buildout of E.On’s North American trading desk. Joined by a team of deep domain experts in energy trading and market risk management, he co-founded Bridge Energy Consulting (sold to Ablireo Energy in 2019), providing energy management services and solutions to clients looking for new ways to operate effectively in a fast-changing market. In 2017 he co-founded Amperon as a way of combining leading edge thinking in energy forecasting with cutting edge analytical technology. Abe Stanway – Chief Technology Officer and cofounder Abe is Amperon’s Chief Technology Officer, a recognized leader in data science and a proven entrepreneur. Abe’s first company was Hacker League, a company whose technology platform was widely adopted by technology innovators to support hackathons. He sold Hacker League to Intel in 2013, and his work has since spanned a variety of top engineering and data science teams, DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 511 including roles at Etsy, Planet Labs, and McKinsey. Abe has worked on large scale timeseries anomaly detection systems, telemetry platforms for low earth orbit satellites, insidertrading detection systems, and much more — all at the confluence of real-time machine learning on massive datasets. He has published AI papers in several venues including the International Conference on Machine Learning (ICML) and the Web international Search and Data Mining (WSDM) conference. In 2020, Abe was selected by Forbes as a 30 Under 30 honoree in the Energy category. Dr. Ydo Wexler (PhD) – Chief Data Scientist Dr. Ydo Wexler (PhD, Computer Science; Technion – Israel Institute of Technology) is Amperon’s Chief Data Scientist. Dr. Wexler brings over twenty years of computer and data science experience across high frequency trading firms and research labs including Microsoft Research and IBM Research, with a focus on machine learning and multi-phase forecasting. He has published over 20 papers in various machine learning and AI journals, including NIPS, ACM, and the Journal of Artificial Intelligence Research. Dr. Mark Shipham (PhD) – Chief Meteorologist Dr. Mark Shipham (PhD, Atmospheric Chemistry and Climatology) is Amperon’s Chief Meteorologist. For over 30 years Mark has been applying meteorological data to areas including commodity risk management, wind energy and energy trading. Mark is passionate about understanding weather and spent the first 15 years of his career at NASA’s Langley Research Center looking at weather, its patterns and changing trends. Moving to the commercial world, Mark joined Virginia Dominion Power as a trader where he combined his knowledge of weather to create cutting edge analytical models to drive trading performance and risk management. As Lead Meteorologist and a member of the Power Congestion team at Morgan Stanley, he identified and executed trades to arbitrage weather model inefficiencies using natural gas and power products as well as developing Morgan Stanley’s seasonal weather strategies for North America and Europe. At Jamison Capital Partners, Mark developed a weather derivatives trading platform and created “real time” heating and cooling degree day models to improve forecasting and market trading. Mark then joined E.On where he led development of an automated multivendor weather platform that delivered intra-day weather forecasts to traders as well as codeveloping new capabilities in weather derivatives using advanced analytics platforms. At Amperon, Mark leads our weather efforts, collaborating with our data science team to refine our modes and predictions. He also works with customers, providing a daily newsletter, answering calls daily to explain Critical Peaks, micro-climate consequences and provide his perspectives on longer term trends. Elliott Chorn – EVP of Market Operations Elliott Chorn manages market operations and client success for Amperon in his role as EVP of Market Operations. An energy data, analytics and information expert, Elliott has worked in wholesale and retail energy for over 15 years both in operational and technical roles. Most recently, he held a dual role of Vice President of Pricing and Operations for TrueLight Energy LLC and Director of Analytics for TrueLight Energy Fund. Prior to that Elliott was the Senior Pricing Analyst at Tradition Energy, one of world’s largest, independent full-service energy management consultancy where he was responsible for leading pricing operations for the DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 512 Northeast region and led a team of market and pricing analysts. Previously, Elliott held the senior pricing and scheduling role for Mint Energy, one of the fastest growing independent energy retailers serving business customers in the Northeast. At Mint Energy, he designed, built, DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 513 The City of Denton Bid # 8024, Request for Price (RFP) Forecasting Services 11 Proprietary & Confidential and implemented models and processes for retail power pricing and ISO scheduling. Prior to Mint Energy, Elliott was the Senior Commodity Analyst at Patriot Energy Group, a full-service energy procurement and management firm with more than 14,000 customers where he led market discovery and had responsibility for creating processes and programs used by the Commodity Pricing Group. Mikhail Khorana – EVP of Growth Mikhail Khorana has 12 years of experience in the electricity markets, leading teams in accounting, finance, operations and commercial analytics for retail energy companies and investment banks. Most recently, Mikhail served as the Director of Commercial Analytics for Direct Energy/NRG, leading load forecasting, position management and meteorology for the North American power portfolio. During his tenure, Mikhail oversaw position valuations and integration activities for retail portfolio acquisitions (Hess Energy Marketing, Source Power and Gas, Direct Energy), technology implementations (ETRM, Load Forecasting, Reporting) and complex deal valuations (PPA’s, managed products, hedge strategies). DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 514 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 AMPERON HOLDINGS, INC. EXHIBIT G 9/29/2022 X 515 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 1D7012ED-E28B-4ADC-BB84-5D25AF7938C9 516 Certificate Of Completion Envelope Id: 1D7012EDE28B4ADCBB845D25AF7938C9 Status: Sent Subject: Please DocuSign: City Council Contract 8024 - LOAD FORECASTING SERVICES Source Envelope: Document Pages: 46 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Christa Christian AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 Christa.Christian@cityofdenton.com IP Address: 198.49.140.10 Record Tracking Status: Original 9/20/2022 11:59:46 AM Holder: Christa Christian Christa.Christian@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Christa Christian christa.christian@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 9/27/2022 4:28:15 PM Viewed: 9/27/2022 4:28:31 PM Signed: 9/27/2022 4:28:40 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/27/2022 4:28:44 PM Viewed: 9/28/2022 9:14:34 AM Signed: 9/28/2022 9:14:53 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 47.24.6.135 Sent: 9/28/2022 9:14:58 AM Viewed: 9/29/2022 1:14:56 PM Signed: 9/29/2022 1:29:55 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sean Kelly sean@amperon.co CEO Amperon Holdings, Inc. Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 98.34.250.159 Sent: 9/29/2022 1:29:59 PM Resent: 9/29/2022 4:40:45 PM Viewed: 9/29/2022 6:52:31 PM Signed: 9/29/2022 6:53:48 PM Electronic Record and Signature Disclosure: Accepted: 9/29/2022 6:52:31 PM ID: 9c3d46ec-7994-4691-94d6-5cf070300e1b 517 Signer Events Signature Timestamp Antonio Puente Antonio.Puente@cityofdenton.com DME General Manager Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 174.197.69.1 Signed using mobile Sent: 9/29/2022 6:53:52 PM Viewed: 9/30/2022 7:31:26 AM Signed: 9/30/2022 7:31:57 AM Electronic Record and Signature Disclosure: Accepted: 9/30/2022 7:31:26 AM ID: 1cc1e408-dc0b-416b-aa7f-2bf9742771ac Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 7:32:02 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2022 5:16:40 PM ID: 59eb637f-1676-4a1f-93e9-5663c0617a7e In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/27/2022 4:28:44 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 518 Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 7:32:02 AM Viewed: 10/7/2022 8:53:24 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Stephen Johnson Stephen.Johnson@dmepower.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 9/27/2022 4:28:15 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 519 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Sean Kelly, Antonio Puente, Rosa Rios 520 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2200,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with Maxar Intelligence,Inc.,for weather forecasting services and renewables forecasting services for Denton Municipal Electric;providing for the expenditure of funds therefor; and providing an effective date (RFP 8024 -awarded to Maxar Intelligence,Inc.,in the three (3)year not-to- exceed amount of $200,000.00). The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™523 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Maxar Intelligence, Inc., for weather forecasting services and renewables forecasting services for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 8024 – awarded to Maxar Intelligence, Inc., in the three (3) year not-to-exceed amount of $200,000.00). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND Denton Municipal Electric (“DME”) is highly dependent on weather forecasting services to manage electric demand. The growing wind and solar generation portfolio adds a considerable dependency on accurate weather forecasting to manage the City of Denton’s electric demand requirements. Weather volatility is a key driver of electric demand and renewable energy output in the short-term and long-term horizon. DME is seeking approval for forecasting service(s) which include Weather Forecasting, Load Forecasting, Wind Forecasting, and Solar Forecasting. The major functions of the Forecasting solution(s) are as follows: 1. Weather Forecasting a. Short-Term Weather (7 Day) b. Mid-Term Weather (15 Day) c. Seasonal Weather 2. Load Forecasting a. Short-Term (1 Day) b. Mid-Term (15 Day) c. Long Term (1 year+) 3. Wind Forecasting a. Intra-Day Forecast b. Short-Term Forecast (2-7 Days) 4. Solar Forecasting a. Intra-Day Forecast b. Short-Term Forecast (2-7 Days) City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 524 If approved, staff will utilize this solution to support effective energy portfolio management operations, increase efficiencies, and data collection, increase staff performance, and provide management with reporting data. Request for Proposals was sent to 828 prospective suppliers of this item, including 23 Denton firms. In addition, specifications were placed on the Procurement website for prospective suppliers to download and advertised in the local newspaper. Six (6) proposals were received, references were checked, and proposals were evaluated based upon published criteria including delivery, compliance with specifications, probable performance, and price. Based upon this evaluation, Maxar Intelligence, Inc. was ranked the highest and determined to be the best value for the City for weather forecasting services and renewables forecasting services. NIGP Code Used for Solicitation: 208, 690, 691, 926 Notifications sent for Solicitation sent in IonWave: 828 Number of Suppliers that viewed Solicitation in IonWave: 44 HUB-Historically Underutilized Business Invitations sent out: 67 SBE-Small Business Enterprise Invitations sent out: 314 Responses from Solicitation: 6 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Maxar Intelligence, Inc., for weather forecasting services and renewables forecasting services for Denton Municipal Electric, in a three (3) year not-to-exceed amount of $200,000. PRINCIPAL PLACE(S) OF BUSINESS Maxar Intelligence, Inc. Austin, TX ESTIMATED SCHEDULE OF PROJECT(S) This is a three (3) year contract. FISCAL INFORMATION These services will be funded from Denton Municipal Electric Power Supply, Energy Management division budget account 6000037804. Requisition #157509 has been entered into the Purchasing software system in the amount of $200,000. The budgeted amount for this item is $200,000. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Pricing Evaluation Exhibit 3: Ordinance and Contract 525 Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Shane Wallin, 940-349-7521. Legal point of contact: Marcella Lunn at 940-349-8333. 526 Amperon Holdings, Inc.Atmospheric G2, LLC Enverus, Inc.Itron Inc.DNV Energy USA, Inc.Maxar Technologies, Inc. Houston, TX Atlanta, GA Austin, TX Liberty Lake, WA Katy, TX Austin, TX $198,000.00 $35,100.00 $246,000.00 $191,059.00 $119,340.00 No bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.60 1.40 4.60 3.80 2.60 1.00 2 Compliance with Specifications 30%30.00 8.40 24.00 16.80 13.20 6.00 3 Probable Performance 25%24.00 7.00 20.00 16.00 10.00 5.00 4 Price, Total Cost of Ownership - 40%6.00 40.00 6.00 7.00 12.00 0.00 64.84 56.80 51.91 43.95 37.56 12.00 Maxar Technologies, Inc.Atmospheric G2, LLC Enverus, Inc DNV Energy USA Inc Amperon Holdings, Inc.Itron Inc. Austin, TX Atlanta, GA Austin, TX Katy, TX Houston, TX Liberty Lake, WA $64,800.00 $66,600.00 $72,000.00 $58,680.00 No Bid No Bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.80 3.40 2.80 2.40 1.20 1.20 2 Compliance with Specifications 30%30.00 15.60 15.60 10.80 7.20 7.20 3 Probable Performance 25%24.00 14.00 13.00 10.00 6.00 6.00 4 Price, Total Cost of Ownership - 40%36.00 35.00 33.00 40.00 0.00 0.00 95.02 68.24 64.00 63.20 14.40 14.40 Maxar Technologies, Inc.Atmospheric G2, LLC Amperon Holdings, Inc.Enverus, Inc DNV Energy USA Inc Itron Inc. Austin, TX Atlanta, GA Houston, TX Austin, TX Katy, TX Liberty Lake, WA $64,800.00 $99,000.00 No Bid No Bid No Bid No Bid Item #Scoring Criteria 1 Delivery/Projct Schedule 5%4.80 4.60 2.20 1.20 1.20 1.20 2 Compliance with Specifications 30%30.00 26.40 8.40 7.20 7.20 7.20 3 Probable Performance 25%24.00 22.00 6.00 6.00 6.00 6.00 4 Price, Total Cost of Ownership - 40%40.00 26.00 0.00 0.00 0.00 0.00 98.80 79.00 16.60 14.40 14.40 14.40 Respondent's Business Name: Principal Place of Business (City and State): Total Score: Weather Forecasting Contract Total: (3 years not including additional Exhibit 2 RFP 8024 - Pricing Evaluation for Forecasting Services Principal Place of Business (City and State): Load Forecasting Services Total Score: Renewable Forecasting Total Score: Respondent's Business Name: Principal Place of Business (City and State): Respondent's Business Name: Contract Total: (3 years not including additional Contract Total: (3 years not including additional 527 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH MAXAR INTELLIGENCE, INC., FOR WEATHER FORECASTING SERVICES AND RENEWABLES FORECASTING SERVICES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 8024 AWARDED TO MAXAR INTELLIGENCE, INC., IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $200,000.00). WHEREAS, the City has solicited, received, and evaluated competitive proposals for load forecasting services for Denton Municipal Electric; and WHEREAS, the City Manager, or a designated employee, has received, reviewed, and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and function; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies, office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 8024 Maxar Intelligence, Inc. $200,000.00 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. That should the City and person submitting approved and accepted items wish 528 to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager, or their designated representative, is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR 529 ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 530 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 Christa Christian Yes RFP WEATHER FORECASTING AND RENEWABLES FORECASTING CONTRACT 8024 531 Contract # 8024 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND MAXAR INTELLIGENCE, INC (CONTRACT 8024) THIS CONTRACT is made and entered into this date ______________________, by and between MAXAR INTELLIGENCE, INC. a Delaware corporation, whose address is 2901 VIA FORTUNATA, BUILDING 6, SUITE 200, AUSTIN, TEXAS 78746 hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide products and/or services in accordance with the City’s document RFP 8024 – FORECASTING SERVICES – WEATHER FORECASTING SERVICES AND RENEWABLES FORECASTING SERVICES a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit “A”); (b) Contractor’s Proposal WeatherDesk End User License Terms (Exhibit "B"); (c) City of Denton’s RFP 8024 (Exhibit “C” on File at the Office of the Purchasing Agent); (d) City of Denton Standard Terms and Conditions (Exhibit “D”); (e) Insurance Requirements (Exhibit “E”); (f) Certificate of Interested Parties Electronic Filing (Exhibit "F"); (g) Form CIQ – Conflict of Interest Questionnaire (Exhibit "G"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as “Contract Documents.” Prohibition on Contracts with Companies Boycotting Israel Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 532 Contract # 8024 Prohibition on Contracts with Companies Boycotting Certain Energy Companies Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition on Contracts with Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. 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. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 533 Contract # 8024 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. MAXAR INTELLIGENCE, INC. BY: ______________________________ AUTHORIZED SIGNATURE Printed Name: ______________________ Title: _____________________________ __________________________________ PHONE NUMBER __________________________________ EMAIL ADDRESS __2022-___________________________ TEXAS ETHICS COMMISSION 1295 CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: _______________________________ SARA HENSLEY, CITY MANAGER ATTEST: ROSA RIOS, CITY SECRETARY BY: _______________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _______________________________ THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 Andrew Canales N/A 13036844561 legalcontracts@maxar.com VP, Americas Commercial Sales Electric Antonio Puente Electric 534 Contract # 8024 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $200,000, subject to Sections 2 and 4 below. Pricing shall be per Exhibit F attached for the WEATHER FORECASTING SERVICES AND RENEWABLES FORECASTING SERVICES. The City shall pay the Supplier a total sum of $129,600 for the services and the deliverables for the initial three (3) year term, which shall be payable in three (3) equal installments of $43,200 each at the beginning of each contract year during such initial three (3) year term. 2. The Quantities The quantities indicated on Exhibit F are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs, subject to adjustments in the bid price in the event of quantity increases. Individual purchase orders will be issued on an as needed basis. 3. Contract Terms The contract term will be three (3) years, effective from date of award. 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. The Supplier’s request to not renew the contract must be submitted in writing to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. 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. 4. Price Escalation and De-escalation On Supplier’s request in the form stated herein, the City will implement an escalation/de-escalation price adjustment annually based on these special terms. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) or the manufacturer published pricing list. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. The price will be increased or decreased based upon the annual percentage change in the PPI or the percentage change in the manufacturer’s price list. Should the PPI or manufacturer price list change exceed a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted in accordance with the percent change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 535 Contract # 8024 Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre-price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 536 Contract # 8024 Exhibit B END USER LICENSE TERMS WEATHERDESK Version 05-25-2021 These WeatherDesk license terms (the “License Terms”) are entered into by Maxar Technologies Inc. (“Maxar”) and Customer and contain the general terms relating to Customer’s access to and use of the Product, whether licensed from an Affiliate of Maxar or from a Certified Reseller of Maxar. The applicable Customer Agreement sets forth the terms pursuant to which Customer purchased its use of the Product. By signing or otherwise indicating acceptance of a Customer Agreement or downloading, accessing or using any Product licensed under an “WeatherDesk License,” you, on behalf of Customer, are accepting and agreeing to be bound by these License Terms. If you are entering into these License Terms on behalf of a company, other legal entity or government agency, you represent that you have the authority to bind that entity to the terms and conditions of these License Terms. Capitalized terms used in these License Terms are defined in Section 14 of these License Terms 1. PRODUCT. During the Term, Maxar will provide Customer the Product in accordance with the parameters set forth in the Customer Agreement and/or Product Specification. 2. LICENSE GRANT. 2.1 GRANT OF LICENSE. Subject to Customer’s compliance with these License Terms and the applicable Customer Agreement, including payment of all applicable fees, Maxar grants to Customer a non-exclusive, non-transferable, limited fee-based license to allow its Authorized Users to access the Product during the Term solely for Customer’s Internal Use as follows: (a) access and use the Maxar Platform; and (b) access, analyze, download, use, and make Derivatives of, the Content. 2.2 OTHER CONTENT. Content may include Third Party Content that is subject to Third Party license terms, as described in the Product Specification. Notwithstanding anything to the contrary in these License Terms, if Customer’s subscription includes access to Third Party Content, Customer understands and agrees that use of such Third Party Content is subject to the applicable Third Party Terms identified in the Product Specification, or provided by Maxar upon request. If there is any inconsistency between these License Terms and the terms and conditions of the applicable Third Party Terms, the Third Party Terms will apply to that Third Party Content. 2.3 AUTHORIZED USERS. Customer will ensure that each Authorized User complies with these License Terms. Customer is responsible and liable for all acts and omissions of Authorized Users relating to the Product, including any violation of these License Terms. A breach of these License Terms by an Authorized User is deemed to be a breach by Customer. 3. PRODUCT CHANGES. During the Term, Maxar reserves the right to revise the Product Specification to reflect changes in, among other things, laws, rules, regulations, technology, industry practice, Product usage, and the availability of Third Party Content. Updates to the Product and Product Specification under this Section will not materially decrease the overall functionality of the Product during the Initial Term set forth in the Customer Agreement. Customer is responsible for all Internet, communication, hardware and other costs associated with its Authorized Users’ access to and use of the Product. New or revised Content and/or Tools that are made available to Customer as a part of its existing subscription may be subject to different use rights and restrictions. Customer understands and agrees that these revised terms will be communicated to Customer via email or posting in the Product or on the Maxar Platform and are effective upon this notice. New or revised Content and/or Tools that are made available to Customer at Customer’s request may require Customer to affirmatively agree to new or revised terms and conditions in the form of an amendment to these License Terms or a new agreement. 4. TERM. 4.1 TERM. Intentionally Deleted. 4.2 LICENSE TERM. Intentionally Deleted. 5. RESTRICTIONS. 5.1 DELIVERY. Unless otherwise set forth in the Customer Agreement or Product Specification, Products are made available to Customer and its Authorized Users online via a Maxar Platform. In most cases, Customer’s account will be activated and operable by Customer on the Start Date. The Product is deemed to be delivered when Customer has been provided credentials to access the applicable Maxar Platform and Maxar sends an email notifying Customer that either (i) the subscription has been activated, or (ii) for non-subscription Products, the Products are ready for download. Customer has thirty (30) days to access and download non-subscription Products. Maxar will cooperate with Customer to ensure that the Product is accessible and downloadable. (a) Authorized Access. Authorized Users will access the Maxar Platform via the Internet by means of a specific account and passwords provided by Maxar. Customer is solely responsible for the confidentiality, security and use of its passwords and account. Maxar will have the right to rely upon any information received from any person using a password or other security measures assigned to Customer and DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 537 Contract # 8024 will incur no liability for this reliance. (b) Restrictions on Use. Customer is responsible for Authorized Users’ access and use of the Maxar Platform and compliance with these License Terms. Customer will use commercially reasonable efforts to prevent unauthorized access to and use of the Maxar Platform and will notify Maxar promptly of any unauthorized use of which it is aware. (c) Disabling Devices. Customer will use commercially reasonable efforts, including using a Virus detection/scanning program, in order to remove any Disabling Devices from its systems that may be transmitted to or otherwise present any harm to Maxar’s systems. If Customer determines that a Disabling Device has been transmitted to the systems or computers of Maxar, Customer will notify Maxar promptly of the transmission and the nature of the Virus or other device. Maxar may disable Customer’s access to the Maxar Platform and other Maxar computing systems and/or networks to protect Maxar’s computing systems and/or networks from a Disabling Device or if Customer breaches any of the security measures established by Maxar, including access or attempted access to the Maxar Platform by any unauthorized person. Maxar will notify Customer if it disables Customer’s access as soon as reasonably possible thereafter. (d) Anonymous Data. Maxar may collect and use Anonymous Information and disclose it internally and to its third party service providers, to support and improve Maxar’s operations, offerings, products, and services. Maxar may also use Anonymous Data for product marketing, research and development activities. Customer understands and agrees that Maxar owns all Anonymous Information and Maxar is not restricted from using or disclosing such Anonymous Data in any way. 5.2 USE RESTRICTIONS. Customer recognizes and agrees that the Product is the property of Maxar and contains valuable assets and proprietary information of Maxar and its suppliers, as applicable. Accordingly, except as expressly permitted in these License Terms, Customer will not, and will not permit any Authorized User to (i) distribute, sublicense, transfer, assign, rent, sell, lease, loan, make publicly available, publish or otherwise convey access to or use of the Product or Derivatives to anyone other than Authorized Users; or (ii) use the Product or Derivatives for the business needs of any Third Party, including without limitation, providing any services to any Third Parties. In addition, Customer will not, and will not permit any Authorized User to: (a) Use the Product, Content, or Derivatives to improve the accuracy of any other satellite imagery via algorithmic processing or any other method; (b) Remove, bypass or circumvent any electronic or other forms of protection included on or with the Product; (c) Alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Product; (d) Modify or use the Product, Content, Derivatives, or the Maxar Platform in any manner that infringes upon the Intellectual Property Rights of another entity, or violates any applicable laws; (e) Reverse engineer, disassemble, decompile or otherwise attempt to derive the algorithms, source code, databases or data structures upon which the Product or Maxar Platform is based to the extent this restriction is permitted by law; (f) Use the Product or Maxar Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material; (g) Interfere with the operation of the Product or Maxar Platform or attempt to access data or computing resources not belonging to or intended for Customer; (h) Use the Product, Content, or Derivatives for any activities where the use or failure of the Product could lead to death, injury, or property or environmental damage; or (i) Otherwise use or access the Product, Content, Downloaded Content, or Derivatives for any purpose not expressly permitted under these License Terms, including, without limitation, for Commercial Purposes. 5.3 NO SCRAPING. Customer is expressly prohibited from scraping or download Content in bulk, except to the extent permitted in the Product Specification. High frequency scripted access to the Maxar Platform is expressly prohibited. If Customer's account generates a high volume of transactions, Maxar reserves the right to set transaction limits. Maxar also reserves the right to set other usage policies in the Product Specification. 6. OWNERSHIP. 6.1 PRODUCT, CONTENT AND DERIVATIVES. (a) Maxar. All right, title and interest in and to the Product (including all Content, Tools, and the Maxar Platform), and all corrections, enhancements, or other modifications made to the Product by Maxar or any Third Party at Maxar’s direction, and all Intellectual Property Rights therein are the sole and exclusive property of Maxar or its Affiliates or suppliers, as applicable. (b) Customer. All right, title and interest, including all Intellectual Property Rights, in and to enhancements or modifications made by Customer in the creation of a Derivative and any new material contributed by Customer in the creation of a Derivative, but specifically DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 538 Contract # 8024 excluding preexisting materials or Intellectual Property owned by Maxar, its Affiliates, or its suppliers, as applicable (including, without limitation, Content that is integrated, referenced, recast, transformed or adapted in the Derivative), are the exclusive property of Customer. However, notwithstanding the ownership rights of Customer in the enhancements, modifications and contributed materials, use of a Derivative by Customer is subject to the license and use restrictions set forth in these License Terms. All rights not expressly granted to Customer in these License Terms are reserved by Maxar. 6.2 FEEDBACK. Customer may provide suggestions and comments regarding usability, bug reports, test reports or other feedback (collectively, "Feedback"), regarding the Product. Customer agrees that: (i) Maxar may freely use, disclose, reproduce, license, distribute and otherwise commercialize improvements resulting from the Feedback in any Maxar product, technology or service; and (ii) Customer obtains no Intellectual Property Rights in any improvements to the Product or other products, technology, or services resulting from the Feedback and hereby expressly waives any such claims. 7. ATTRIBUTION. Customer will not delete, alter, cover or distort any copyright, trademark or other proprietary rights notice placed on or in the Product and will ensure that all notices are reproduced on all copies. All Downloaded Content and Derivatives include the following copyright notice on or adjacent to the Downloaded Content or Derivative: [Product] © [YEAR] Maxar Technologies. Certain Third Party Content may be subject to additional attribution requirements, as set forth in the Product Specification. Except as required in this Section 7, Customer may not use the trademarks, service marks, trade name, domain name or other source identifiers of Maxar, or its Affiliates or suppliers, without the express written consent of Maxar. 8. CERTIFICATION AND AUDIT. Upon Maxar’s written request, and not more than once per calendar year, Customer will certify its compliance with the Customer Agreement and these License Terms. Upon 30 days written notice and no more than once every twelve (12) months, Maxar may audit Customer’s compliance with the Customer Agreement and these License Terms. Customer will cooperate with Maxar’s audit and provide reasonable assistance and access to information and records. Audits will not unreasonably interfere with Customer’s normal business operations and will be subject to reasonable confidentiality requirements. If an audit results in a finding of non-compliance, Maxar may, at its discretion: (a) invoice any additional Fees due with interest as set forth herein and recover the cost of the audit if additional Fees exceed five percent (5%) of the Fees paid during the audit period; and (b) terminate these License Terms in accordance with Section 12 of these License Terms. Customer must pay the invoices issued under this Section within 30 days following the date of invoice. 9. INDEMNIFICATION BY MAXAR. Maxar’s obligations to indemnify, defend and hold Customer harmless for claims of intellectual property infringement pursuant to the Contract shall be limited to claims related to Customer’s use of the Product as delivered by Maxar to Customer. Maxar shall not have any liability or responsibility to indemnify, defend or hold Customer harmless for any such claims arising out of Customer’s violation of these License Terms or the Contract. 10. LIMITED WARRANTY AND DISCLAIMER. 10.1 LIMITED WARRANTY. Maxar warrants that the Product ordered will materially comply with the Customer Agreement and/or Product Specification, as applicable. Maxar’s sole obligation and Customer’s exclusive remedy for a breach of this warranty is for Maxar, at its option and expense, to: (i) repair or replace the non-conforming Product; or (ii) terminate the applicable license and refund all Fees paid by Customer for the non-compliant Product. This limited warranty is void if any non-conformity has resulted from any accident, abuse, misuse, misapplication or modification of or to the Product by anyone other than Maxar or any breach by Customer of the Customer Agreement, including these License Terms. For a subscription Product, any claim under this warranty must be made within thirty (30) days following Customer's initial discovery of the non-conformity. For a non-subscription Product, any claim under this warranty must be made within thirty (30) days following delivery of the non-conforming Product. 10.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 10, THE PRODUCT IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON- MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. NEITHER MAXAR NOR ITS AFFILIATES OR SUPPLIERS WARRANT THAT THE PRODUCT WILL BE ACCURATE, CURRENT OR COMPLETE, THAT THE PRODUCT WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS OR THAT THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED. FURTHER, SPATIAL, SPECTRAL AND TEMPORAL ACCURACY IS NOT GUARANTEED. 11. LIMITATION OF LIABILITY. IN NO EVENT WILL MAXAR, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE LICENSE TERMS OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE TOTAL LIABILITY OF MAXAR, ITS AFFILIATES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT EXCEED THE FEES PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS AND STATUTORY CLAIMS. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 539 Contract # 8024 12. TERMINATION. These License Terms will remain in effect with respect to the subscription Products for the Term set forth in Section 4.1 and with respect to the Downloaded Content and non-subscription Products as set forth in Section 4.2, unless in either case, the Term is earlier terminated in accordance with this Section 12. 12.1 BY MAXAR. In addition to those termination rights set forth in Section 10 of these License Terms, Maxar may immediately terminate the license rights, and any associated subscription Term, upon written notice to Customer if Customer (a) breaches Sections 2, 5, 6, 7, 9, 13.6, 13.7, or 13.8 of these License Terms; or (b) materially breaches any other provision of these License Terms or the Customer Agreement and fails to cure the breach within thirty (30) days after receiving written notice. In addition, Maxar reserves the right to suspend Customer’s access to the Product or terminate these License Terms, effective immediately upon written notice, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from Maxar that payment is past due. Maxar may also suspend Customer’s access to the Product if Customer’s usage exceeds the usage limits set forth in the Order Confirmation or Product Specification. Fees will continue to accrue during any suspension. 12.2 BY CUSTOMER. Customer may terminate the Product license and any associated subscription Term at any time by (a) stopping use of the Product; (b) permanently deleting any Downloaded Content and Derivatives thereof from all devices and systems and destroying any copies on disk; and (c) certifying to Maxar in writing that it and its Authorized Users have ceased all use of the Product and that all copies of Products, Downloaded Content and Derivatives have been deleted or destroyed; however, Customer is still responsible for paying all license fees in full.. In the event the Contract spans multiple fiscal years, Customer’s continuing performance under the Contract is contingent upon the appropriation of funds to fulfill the requirements of the Contract by the City Council of the City of Denton. If the City Council of the City of Denton fails to appropriate or allot the necessary funds, Customer shall issue written notice to Maxar that Customer may terminate the Contract without penalty, further duty, or obligation. 12.3 EFFECT OF TERMINATION. Upon termination or expiration of these License Terms, Customer will immediately stop all use of the subscription Product, Content, and Derivatives thereof, and will cause its Authorized Users to do the same. The expiration or termination of these License Terms does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration. However, Customer may continue to use any Downloaded Content or non-subscription Product licensed on a perpetual basis in accordance with these License Terms. 12.4 SURVIVAL. The duties and obligations of the parties under Sections 2.3, 4.2, 5.2, 6, 7, 8, 9, 10, 11, 12.3, 12.4 and 13 of these License Terms will survive expiration or termination of these License Terms. 13. GENERAL TERMS. 13.1 ENTIRE AGREEMENT. These License Terms, together with the Customer Agreement, constitute the entire agreement between the parties with respect to use of the Product and supersede all previous and contemporaneous agreements, understandings and arrangements, whether oral or written. 13.2 ASSIGNMENT. Customer may not transfer or assign any of its rights or delegate any of its obligations under these License Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of Maxar. Any attempted assignment or transfer in violation of this Section will be null and void. These License Terms will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns. 13.3 AMENDMENT. Except as set forth in Section 3 of these License Terms, these License Terms may be amended or supplemented only by a writing that refers to these License Terms and is signed by both parties. 13.4 WAIVER. The failure or delay by a party to require performance of any provision of these License Terms does not constitute a waiver. All waivers must be in writing and signed by the party granting the waiver. The waiver by a party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or a different right or remedy in a subsequent instance. 13.5 SEVERABILITY. If any provision of these License Terms is invalid, illegal or unenforceable, that provision will be deemed to be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. 13.6 COMPLIANCE WITH LAWS. Customer is responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and these License Terms, and agrees to comply with all these laws, regulations and other legal requirements including, without limitation, the Foreign Corrupt Practices Act of the United States of America and the Convention on Combating Bribery of Foreign Government Officials. 13.7 INTERNATIONAL TRADE COMPLIANCE. The Product is subject to the customs and export control laws and regulations of the United States, Canada and any country in which the Product is manufactured, received or used, including, without limitation, the Export Administration Regulations and the International Traffic in Arms Regulations. Customer will comply with these laws, regulations and rules in the performance of its obligations under these License Terms. Further, Customer will not provide the Product to blocked, prohibited or restricted individuals and entities as required by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), including, without limitation, the Denied Persons List, Unverified List and Entity List. Customer will not knowingly do business with criminal organizations, terrorist organizations or other people or groups, either directly or indirectly, that are likely to use the Product for purposes that are illegal or adverse to the interests of the United States Government or Maxar generally. Customer will provide Maxar any additional information that Maxar may request periodically to verify Customer’s compliance with these License Terms. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 540 Contract # 8024 13.8 DATA PROTECTION. If Customer’s use of the Product will involve the Processing of Personal Data, Customer will comply at all times with applicable laws, regulations and other legal requirements. Customer will ensure that it has in place a privacy policy that provides transparent communication of the Processing activities and the rights of Data Subjects. Additionally, Customer will employ adequate technical and organizational security measures to protect Personal Data against a personal data breach. 13.9 GOVERNING LAW AND DISPUTE RESOLUTION. All matters and disputes arising out of or in connection with this License Agreement will be governed by and construed under the laws and using the method of dispute resolution indicated below, based upon where Customer is domiciled: If Customer is domiciled in: The governing law is: Any suit, action or proceeding arising out of or relating to these License Terms must be: United States of America, Canada, or Mexico Texas and controlling United States federal law Instituted in Denton County Texas and the United States District Court for the Eastern District of Texas Any other country Laws of England & Wales Finally settled under the Rules of Arbitration of the International Chamber of Commerce by arbitrator(s) appointed in accordance with those Rules. The place of arbitration shall be New York, New York, and any and all awards and other decisions shall be deemed to have been made there, without prejudice to the right of the arbitral tribunal to hold hearings, meetings, or sessions any place it deems appropriate. Each party irrevocably submits to the exclusive jurisdiction of the applicable court set forth above. However, each party will have the right at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. With respect to arbitration, there will be one arbitrator and the language of arbitration will be English. The party or parties prevailing in any legal actions, arbitration or other proceeding relating to this License Agreement, whether in arbitration, at trial or upon appeal, will be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this License Agreement. 13.10 NOTICES. All notices of termination or breach must be in writing in English and addressed to the other party’s legal department. Notice of termination by Customer and routine correspondence should be sent to weatherdesk@maxar.com. The email address for legal notices to be sent to Maxar is legalservices@maxar.com. Notice is treated as given upon receipt, as verified by written or automated receipt or electronic log, as applicable. 13.11 CONTROLLING LANGUAGE. These License Terms are drafted in the English language only. English will be the controlling language in all respects, and all versions of these License Terms in any other language are for accommodation only and will not be binding on the parties. 14. DEFINITIONS. "Affiliate" means any legal entity controlling, controlled by or under common control with a party, where “control” means (a) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to direct or cause the direction of the management and policies of such party by any means. "Anonymous Information" means usage statistics about device and use of the Product that does not specifically identify a customer or individual Authorized User, such as aggregated and analytics information about use of the Product. For the avoidance of doubt, Anonymous Information does not include Personal Data. "Authorized User" means an employee or Contractor who is authorized by Customer to use the Product on behalf of Customer. "Certified Reseller" means a reseller authorized by Maxar to resell licenses to use the Product. "Commercial Purpose" means redistribution, retransmission or publication in exchange for a fee or other consideration, which may include, without limitation: (a) advertising; (b) use in marketing and promotional materials and services on behalf of a customer, client, employer, employee or for Customer’s benefit; (c) use in any materials or services for sale or for which fees or charges are paid or received; and (d) use in any books, news publication or journal. "Content" means all information, reports, imagery, and data, including Third Party Content and Information Products, licensed or made available by Maxar in any form, or included in or made accessible via the Product. "Contract Year" means that 12-month period beginning on the Start Date and each subsequent 12-month period, or portion thereof if the subscription is terminated in accordance with Article 12. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 541 Contract # 8024 "Contractor" means an individual contracted by Customer, either directly or through a consulting company or other entity, to provide services on behalf of or for the benefit of Customer. "Customer Agreement" means (a) with respect to a Customer that purchases a license to use the Product from Maxar or an Affiliate of Maxar, that agreement consisting of the applicable Order Confirmation, these License Terms, and any Supplemental Order Confirmation that references the Order Confirmation; and (b) with respect to a Customer that purchases a license to use the Product from a Certified Reseller, that agreement between the Certified Reseller and Customer pursuant to which Customer receives a license to the Product. "Customer Content" means shapefiles, KML files, software, applications, tools, algorithms, models, methods or other data owned or controlled by Customer and used or stored by Customer in the Product. "Customer" means that individual, legal entity or government agency that has purchased a license to use the Product either directly from Maxar or from a Certified Reseller. "Data Subject" means an identifiable natural person. "Derivative" means any addition, improvement, update, modification, transformation, adaptation or derivative work of or to Content, including, without limitation, reformatting of Content into a different format or media from which it is delivered to Customer; any addition or extraction of data, information or other content to or from Content; or any copy or reproduction of Content. "Maxar Platform" means a technology platform provided by Maxar, including the computer hardware, software, Tools, and all other resources, upon which applications, processes or other technologies can be hosted and/or developed, used by Maxar to make Product available to, and usable by, Customer via the Internet. "Disabling Device" means any computer software, code or device, including any Virus, intended for or capable of disrupting, disabling, damaging, destroying or otherwise harming or impeding in any manner the operation of, or providing unauthorized access to, a Product, Content, or a Maxar Platform. "Downloaded Content" means any Content downloaded or extracted from a Maxar Platform by the Customer or Third Party using Customer’s account credentials. "Information Products" means extracted data layers, shapefiles, vectors, summary, analysis or other report, dataset or other information that may include excerpts of satellite imagery or aerial photography, and which may be made available via the Product. "Intellectual Property Rights" means all past, present, and future trade secret rights, patent rights, copyrights, moral rights, contract rights, trademark rights, service marks, and other proprietary rights in any jurisdiction, including those rights in inventions, software, domain names, know-how, technology, methods, processes, information and technology. "Internal Use" means use solely for the internal business purposes of Customer subject to those restrictions set forth in Section 5 of these License Terms, and not for any Commercial Purpose. "License Terms" has the meaning set forth in the Preamble. "Order Confirmation" means that agreement or other document prepared by Maxar that sets forth the Product(s) Maxar offers to license to Customer and the related terms and that is presented to Customer for acceptance. A quotation that includes an estimated fee is not an Order Confirmation. "Personal Data" means any information that directly or indirectly identifies a Data Subject, such as a name, an identification number, location data, an online identifier or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. "Processing" means any operation that is performed on Personal Data, whether or not by automated means, such as collection, storage, alteration, use, dissemination or destruction. "Product Level" means a specific combination of Content, tools, and/or features, as described more fully in the Product Specification, and as designated in the Customer Agreement. "Product Specification" means with respect to the Product and each type of Content, the description and specification published by Maxar and available upon request. "Product" means any of the WeatherDesk products, including all Content and Tools, as described in the applicable Customer Agreement DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 542 Contract # 8024 "Start Date" means the date that Maxar delivers access credentials to Customer or Certified Reseller, whichever is first. "Supplemental Order Confirmation" means that agreement or other document prepared by Maxar and accepted by Customer that supplements or modifies the Customer's existing subscription to the Product, and which references the original Order Confirmation associated with that subscription. "Term" means that period of time during which Customer has valid access credentials to use the Product, as set forth on the Customer Agreement or a Supplemental Order Confirmation. The period of time that Customer is entitled to use non-subscription Products, Downloaded Content and Derivatives thereof may be different, as set forth in Section 4.2 of these License Terms. "Third Party Content" means any content, software or other data that is owned by a Third Party and not owned by Maxar or its Affiliates. "Third Party Terms" means those terms and conditions that apply to the use of Third Party Content. "Third Party" means any individual, corporation, limited liability company, partnership, other organization or government agency that is not a party to these License Terms and is not an Affiliate of Maxar. "Tools" means all software, applications, APIs, tools, algorithms and other support resources made available by Maxar on the Maxar Platform or included in the Product. "Virus" means any computer instructions, devices or techniques that can or were designed to threaten, infect, assault, defraud, disrupt, damage, disable, alter, inhibit or maliciously shut down software and/or a computing environment. [END OF WEATHERDESK LICENSE TERMS] DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 543 Contract # 8024 Exhibit D Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton’s contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City’s Procurement Department and the Supplier. No Terms and Conditions contained in the seller’s proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City’s premises or on public rights-of-way. 1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City’s name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall furnish, DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 544 Contract # 8024 or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City’s service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor’s obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City’s facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it’s Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 545 Contract # 8024 as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department’s Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor’s name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor’s registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor’s invoice. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City’s receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City’s agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor’s obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. 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. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 546 Contract # 8024 G. The awarding or continuation of this contract is dependent upon the availability of funding. The City’s payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the invoices pertaining to the Contract. The Contractor shall retain such invoices 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 such invoices shall be kept until all audit tasks are completed and resolved. These invoices shall be available, within ten (10) business days of written request. 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 thirty (30) calendar days of receipt of an invoice. B. Failure to comply with the provisions of this section shall constitute, in the City’s sole discretion, grounds for termination thereof. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor’s Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 547 Contract # 8024 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 consistent with current prices on orders for customers of a similar industry and size for like services. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY – TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY – DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 548 Contract # 8024 to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the City’s option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City’s rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer’s warranty, the Contractor shall transfer and assign such manufacturer’s warranty to the City. If for any reason the manufacturer’s warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer’s warranty for the benefit of the City. 22. WARRANTY – SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City’s rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City’s evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party’s intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 549 Contract # 8024 performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’s default, including, without limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and post-judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 550 Contract # 8024 the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor’s subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage’s and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor’s and all subcontractors’ insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers’ compensation coverage written by the Texas Workers’ Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 551 Contract # 8024 follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days’ written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage’s indicated within the Contract. xiv. The insurance coverage’s specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse effect on the Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor’s Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such; provided, however, that if Contractor fails to mark any material as proprietary, Contractor may inform the City of the proprietary nature of the materials within sixty (60) days following the Contractor’s submission and such materials shall be deemed proprietary to Contractor. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City’s exercise anywhere in the world of the rights associated with the City’s’ ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 552 Contract # 8024 property rights of any third party; or (ii) the Contractor’s breach of any of Contractor’s representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City’s behalf. Further, Contractor agrees that the City’s specifications regarding the deliverables shall in no way diminish Contractor’s warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In connection with the Contract, subject to the laws of the State of Texas, including the Texas Public Information Act, and without waiving any applicable immunities, each party (the “Disclosing Party”) may disclose certain confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the Disclosing Party or its licensors consider confidential) (collectively, “Confidential Information”) to the other party (the “Receiving Party”). The Receiving Party acknowledges and agrees that the Confidential Information is the valuable property of the Disclosing Party and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the Disclosing Party and/or its licensors. The Receiving Party (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 Disclosing Party 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 Receiving Party promptly notifies the Disclosing Party before disclosing such information so as to permit the Disclosing Party reasonable time to seek an appropriate protective order. The Receiving Party agrees to use protective measures no less stringent than the Receiving Party 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: All right, title and interest in and to the deliverable, and all corrections, enhancements, or other modifications made to the deliverables by Contractor or any third party at Contractor’s direction, and all intellectual property rights therein are the sole and exclusive property of Contractor or its affiliates or suppliers, as applicable. In connection with the City’s use of the deliverables pursuant to this Contract, the City shall comply with the license terms attached hereto in Exhibit F (the “WeatherDesk License”). . 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City’s prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 553 Contract # 8024 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 as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker’s compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. The Vendor shall notify the City’s Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of the company or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director’s resolution approving the action, or an executed merger or acquisition agreement. Failure to do so may adversely impact future invoice payments. 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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 554 Contract # 8024 enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator’s fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year’s Day (observed) Martin Luther King, Jr. Day Memorial Day Juneteenth Independence Day Labor Day Veterans Day Thanksgiving Friday After Thanksgiving Christmas Eve (observed) DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 555 Contract # 8024 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 approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph – 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. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 556 Contract # 8024 C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis-Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD-2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 557 Contract # 8024 notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Special Terms and Conditions 2. The WeatherDesk License; 3. RFP/Bid documents 4. City’s standard terms and conditions DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 558 Contract # 8024 Exhibit E INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ▪ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ▪ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. ▪ Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. • 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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 559 Contract # 8024 Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. 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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 560 Contract # 8024 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’ Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an “occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a “blanket” basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 561 Contract # 8024 Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 562 Contract # 8024 ATTACHMENT 1 [ ] Workers’ Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 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. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 563 Contract # 8024 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 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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 564 Contract # 8024 other civil actions. K. The contractor’s failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 565 Contract # 8024 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/filinginfo/1295/ 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 Commission’s website within seven business days. DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 566 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4EXHIBIT G Maxar Intellegence, Inc 10/17/2022 X 567 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 4679FAA8-6915-4BCF-8139-F45C6CB585B4 568 Certificate Of Completion Envelope Id: 4679FAA869154BCF8139F45C6CB585B4 Status: Sent Subject: Please DocuSign: City Council Contract 8024 WEATHER AND RENEWABLES FORECASTING Source Envelope: Document Pages: 38 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Christa Christian AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 Christa.Christian@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 10/7/2022 3:10:46 PM Holder: Christa Christian Christa.Christian@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Christa Christian christa.christian@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 10/7/2022 3:19:53 PM Viewed: 10/7/2022 3:20:06 PM Signed: 10/7/2022 3:20:11 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 10/7/2022 3:20:14 PM Viewed: 10/7/2022 3:44:02 PM Signed: 10/7/2022 3:44:48 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 47.24.6.135 Signed using mobile Sent: 10/7/2022 3:44:52 PM Viewed: 10/7/2022 3:46:28 PM Signed: 10/7/2022 3:53:19 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Andrew Canales legalcontracts@maxar.com VP, Americas Commercial Sales Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 173.242.16.19 Sent: 10/7/2022 3:53:23 PM Resent: 10/11/2022 11:39:45 AM Resent: 10/13/2022 3:44:32 PM Resent: 10/17/2022 10:50:25 AM Viewed: 10/17/2022 11:48:43 AM Signed: 10/17/2022 11:55:51 AM Electronic Record and Signature Disclosure: Accepted: 10/13/2022 3:49:45 PM ID: 091b6024-49a2-4a51-b946-9d5a33425ab7 569 Signer Events Signature Timestamp Antonio Puente Antonio.Puente@cityofdenton.com Electric Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/17/2022 11:55:56 AM Viewed: 10/17/2022 1:06:40 PM Signed: 10/17/2022 1:06:58 PM Electronic Record and Signature Disclosure: Accepted: 10/17/2022 1:06:40 PM ID: 16b5aa93-262e-4f92-a3be-724f8448e581 Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/17/2022 1:07:03 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/5/2022 5:16:40 PM ID: 59eb637f-1676-4a1f-93e9-5663c0617a7e In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/7/2022 3:20:14 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 570 Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 10/17/2022 1:07:02 PM Viewed: 10/17/2022 1:08:11 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Stephen Johnson Stephen.Johnson@dmepower.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/7/2022 3:19:53 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 571 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Andrew Canales, Antonio Puente, Rosa Rios 572 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2250,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with Red Wing Brands of America,Inc.through the U.S.General Services Administration's (GSA)MAS schedule 47QSWA22D00AB,for Safety Foot Wear for the City of Denton;providing for the expenditure of funds therefor;and providing an effective date (File 8144 -awarded to Red Wing Brands of America, Inc. in a not-to-exceed amount of $750,000.00). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™575 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Red Wing Brands of America, Inc. through the U.S. General Services Administration's (GSA) MAS schedule 47QSWA22D00AB, for Safety Foot Wear for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (File 8144 – awarded to Red Wing Brands of America, Inc. in a not-to-exceed amount of $750,000.00). INFORMATION/BACKGROUND The City of Denton Departments currently purchases their safety footwear from Red Wing Brands of America, Inc., from the GSA Contract (Contract #47QSWA22D00AB). The Federal contract offers fixed pricing for all footwear purchased for safety for the field service employees. These are for Special Purpose Clothing, depending on the needs of the individual and the department's requirements. This is beneficial for safety and to minimize injuries. Water, Wastewater, Solid Waste, DME, Parks, Streets, Traffic, Airport, Facilities, and Materials Management all purchase their footwear from Red Wing Brands of America, Inc. Description Spend 5 Year Spend $ 625,000.00 Contingency-10% $ 125,000.00 Total $ 750,000.00 Chapter 271.102 of the Local Government Code authorizes local governments to participate in a cooperative purchasing program with another local government or local cooperative organization. Instead of competitive bidding, items and services may be purchased through such agreements as the agreements have already been bid by the sponsoring entity or agency. By doing this as a cooperative effort, the combined purchasing usage of these entities was utilized to realize competitive pricing and reduced administrative costs of individual bidding. Pricing obtained through the GSA Cooperative Purchasing Network has been competitively bid and meets the statutory requirements of Texas Local Government Code 271.102. RECOMMENDATION Award a contract with Red Wing Brands of America, Inc., for Safety Foot Wear for various departments within the City of Denton, in the not-to-exceed amount of $750,000.00. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 576 PRINCIPAL PLACE OF BUSINESS Red Wing Brands of America, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT GSA Contract #47QSWA22D00AB for the purchase of Footwear will expire on 9/30/2027. FISCAL INFORMATION These items will be funded through the using department’s budget on an as-needed basis. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Cooperative Pricing Exhibit 3: Ordinance Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Lori Hewell, 940-349-7100. Legal point of contact: Marcella Lunn at 940-349-8333. 577 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price RWBR 00966 $212.49 RWBR 00967 $135.99* RWBR 00971 $182.74 RWBR 00988 $174.24* RWBR 02027 $131.74* RWBR 02030 $152.99 RWBR 02033 $140.24* RWBR 02035 $152.99 RWBR 02036 $152.99* RWBR 02201 $216.74* RWBR 02202 $203.99* RWBR 02203 $194.15 RWBR 02204 $220.99 RWBR 02205 $157.24* RWBR 02206 $191.24* RWBR 02207 $195.49* RWBR 02208 $220.99 RWBR 02211 $203.99 RWBR 02212 $190.02* RWBR 02213 $177.62 RWBR 02214 $225.24* RWBR 02215 $365.49* RWBR 02216 $256.11* RWBR 02217 $260.24 RWBR 02218 $276.77* RWBR 02219 $276.77 RWBR 02220 $165.74* RWBR 02221 $280.49* RWBR 02222 $152.99* RWBR 02223 $161.49 RWBR 02224 $161.49* RWBR 02225 $157.24* RWBR 02226 $161.49 RWBR 02227 $220.99 RWBR 02230 $223.06 RWBR 02231 $190.02 RWBR 02232 $165.74* RWBR 02233 $177.62 RWBR 02234 $169.99* RWBR 02235 $169.99 RWBR 02236 $203.99* RWBR 02237 $140.24* RWBR 02238 $169.99* RWBR 02239 $161.49* RWBR 02240 $186.99 RWBR 02241 $178.49 Brand Style Price RWBR 02243 $186.99 RWBR 02244 $203.99 RWBR 02245 $169.36 RWBR 02246 $169.99* RWBR 02247 $182.74 RWBR 02248 $165.74* RWBR 02249 $182.74* RWBR 02250 $229.49* RWBR 02252 $191.24* RWBR 02253 $220.99* RWBR 02254 $178.49* RWBR 02255 $191.24* RWBR 02256 $152.99* RWBR 02257 $191.24* RWBR 02259 $165.74* RWBR 02260 $195.49 RWBR 02261 $191.24* RWBR 02263 $216.74* RWBR 02264 $233.74* RWBR 02270 $195.49* RWBR 02271 $212.49* RWBR 02272 $218.93 RWBR 02274 $165.74* RWBR 02280 $199.74 RWBR 02281 $148.74 RWBR 02282 $178.49 RWBR 02283 $191.24 RWBR 02284 $148.74 RWBR 02286 $157.24 RWBR 02292 $327.24* RWBR 02294 $140.24* RWBR 02295 $140.24* RWBR 02296 $135.99* RWBR 02297 $152.99* RWBR 02298 $203.99 RWBR 02306 $118.99* RWBR 02307 $123.24* RWBR 02308 $123.24* RWBR 02309 $123.24* RWBR 02320 $174.24 RWBR 02321 $127.49* RWBR 02322 $127.49* RWBR 02323 $127.49* RWBR 02324 $127.49* RWBR 02325 $203.99* RWBR 02326 $152.99* Brand Style Price RWBR 02327 $152.99* RWBR 02328 $152.99 RWBR 02329 $152.99* RWBR 02330 $89.24 * RWBR 02332 $89.24 * RWBR 02333 $97.74 * RWBR 02334 $110.49* RWBR 02335 $101.99* RWBR 02336 $106.24* RWBR 02337 $110.49* RWBR 02338 $114.74* RWBR 02339 $114.74* RWBR 02340 $178.49 RWBR 02341 $114.74* RWBR 02342 $114.74* RWBR 02343 $148.74 RWBR 02344 $203.99 RWBR 02345 $178.49 RWBR 02346 $178.49 RWBR 02347 $198.28 RWBR 02348 $148.74 RWBR 02351 $106.24* RWBR 02369 $97.74 * RWBR 02371 $169.99* RWBR 02373 $169.99* RWBR 02375 $140.24* RWBR 02380 $169.99* RWBR 02381 $152.99* RWBR 02382 $169.99* RWBR 02383 $165.74* RWBR 02400 $220.99 RWBR 02401 $225.24 RWBR 02402 $161.49* RWBR 02403 $220.99 RWBR 02404 $246.49* RWBR 02405 $210.67 RWBR 02406 $202.41 RWBR 02407 $173.49* RWBR 02408 $214.80 RWBR 02409 $237.99 RWBR 02410 $247.85 RWBR 02411 $247.85 RWBR 02412 $280.90 RWBR 02414 $272.64 RWBR 02415 $203.99 RWBR 02416 $280.90* Brand Style Price RWBR 02418 $212.49 RWBR 02426 $259.24* RWBR 02427 $220.99* RWBR 02432 $237.99* RWBR 02433 $206.54* RWBR 02434 $214.80* RWBR 02436 $165.23* RWBR 02438 $177.62* RWBR 02440 $212.49 RWBR 02441 $212.49 RWBR 02442 $220.99 RWBR 02443 $212.49 RWBR 02444 $212.49 RWBR 02445 $212.49 RWBR 02446 $203.99 RWBR 02448 $212.49 RWBR 02449 $212.49 RWBR 02450 $339.99* RWBR 02451 $195.49* RWBR 02452 $229.49 RWBR 02453 $220.99 RWBR 02454 $195.49 RWBR 02455 $212.49 RWBR 02456 $186.99* RWBR 02466 $118.99 RWBR 02491 $231.33 RWBR 02492 $229.49* RWBR 02493 $216.74* RWBR 02499 $195.49 RWBR 02509 $127.49* RWBR 02595 $186.99* RWBR 02691 $169.99* RWBR 03005 $169.99 RWBR 03006 $169.99 RWBR 03007 $161.49 RWBR 03008 $161.49 RWBR 03027 $339.99* RWBR 03049 $212.49* RWBR 03206 $203.99 RWBR 03208 $212.49 RWBR 03209 $152.99 RWBR 03212 $212.49 RWBR 03220 $195.49 RWBR 03222 $140.24 RWBR 03224 $161.49 RWBR 03225 $135.99 Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 578 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price RWBR 03228 $135.99 RWBR 03229 $140.24 RWBR 03238 $233.74 RWBR 03239 $174.24 RWBR 03241 $267.74 RWBR 03259 $135.99 RWBR 03260 $152.99 RWBR 03287 $233.74 RWBR 03295 $178.49 RWBR 03297 $169.99 RWBR 03298 $195.49 RWBR 03500 $198.28* RWBR 03501 $148.74* RWBR 03502 $148.74* RWBR 03503 $127.49* RWBR 03504 $268.51 RWBR 03505 $223.06 RWBR 03506 $220.99 RWBR 03507 $206.54 RWBR 03508 $227.20 RWBR 03509 $127.49* RWBR 03510 $161.49* RWBR 03511 $203.99* RWBR 03512 $229.49 RWBR 03513 $185.89* RWBR 03516 $185.89 RWBR 03517 $263.49 RWBR 03518 $161.49* RWBR 03519 $195.49 RWBR 03520 $271.99 RWBR 03522 $229.49 RWBR 03523 $161.49* RWBR 03524 $206.54 RWBR 03525 $182.74* RWBR 03526 $169.99 RWBR 03527 $246.49* RWBR 03528 $178.49* RWBR 03529 $191.24* RWBR 03530 $246.49* RWBR 03531 $229.49 RWBR 03532 $203.99 RWBR 03533 $140.24* RWBR 03534 $263.49 RWBR 03535 $165.74* RWBR 03536 $174.24* RWBR 03537 $229.49 Brand Style Price RWBR 03539 $174.24* RWBR 03540 $174.24* RWBR 03541 $152.99* RWBR 03542 $186.99 RWBR 03547 $195.49* RWBR 03548 $237.99 RWBR 03550 $127.49 RWBR 03551 $131.74* RWBR 03552 $194.15 RWBR 03553 $223.06 RWBR 03554 $229.49 RWBR 03555 $263.49 RWBR 03556 $161.49 RWBR 03557 $161.49 RWBR 03558 $152.99* RWBR 03559 $152.99* RWBR 03561 $161.49 RWBR 03562 $148.74 RWBR 03564 $144.49* RWBR 03566 $161.49 RWBR 03568 $177.62* RWBR 03569 $195.49* RWBR 03570 $127.49* RWBR 03571 $131.74* RWBR 03572 $229.49 RWBR 03573 $237.99 RWBR 04200 $210.67 RWBR 04201 $297.49* RWBR 04202 $190.02* RWBR 04206 $191.24* RWBR 04208 $216.74* RWBR 04210 $203.99* RWBR 04211 $174.24* RWBR 04212 $203.99* RWBR 04215 $206.54 RWBR 04216 $203.99 RWBR 04217 $194.15* RWBR 04239 $181.75 RWBR 04250 $195.49* RWBR 04273 $206.54* RWBR 04293 $212.49 RWBR 04296 $140.24* RWBR 04309 $174.24* RWBR 04400 $169.99* RWBR 04401 $178.49* RWBR 04402 $177.62 Brand Style Price RWBR 04403 $186.99* RWBR 04404 $233.74 RWBR 04405 $191.24* RWBR 04406 $182.74* RWBR 04407 $152.99* RWBR 04408 $152.99* RWBR 04409 $165.74* RWBR 04410 $161.49* RWBR 04411 $212.49* RWBR 04412 $165.74 RWBR 04413 $220.99* RWBR 04414 $191.24* RWBR 04415 $369.74* RWBR 04416 $225.24* RWBR 04417 $225.24 RWBR 04418 $267.74* RWBR 04420 $212.49 RWBR 04421 $182.74 RWBR 04422 $191.24 RWBR 04423 $177.62* RWBR 04424 $165.74* RWBR 04425 $267.74 RWBR 04426 $165.74* RWBR 04427 $181.75* RWBR 04428 $203.99* RWBR 04429 $178.49* RWBR 04430 $110.49* RWBR 04431 $237.99* RWBR 04432 $101.99* RWBR 04433 $194.15 RWBR 04434 $114.74* RWBR 04435 $202.41 RWBR 04436 $214.80 RWBR 04437 $216.74* RWBR 04438 $233.74* RWBR 04439 $178.49* RWBR 04440 $246.49* RWBR 04441 $218.93 RWBR 04442 $250.74 RWBR 04443 $256.11 RWBR 04445 $233.74* RWBR 04448 $242.24 RWBR 04449 $195.49* RWBR 04450 $186.99* RWBR 04451 $182.74* RWBR 04454 $218.93 Brand Style Price RWBR 04456 $186.99 RWBR 04457 $152.99* RWBR 04458 $161.49* RWBR 04459 $165.74* RWBR 04461 $152.99* RWBR 04462 $169.99* RWBR 04464 $123.24* RWBR 04466 $157.24* RWBR 04469 $212.49* RWBR 04470 $202.41 RWBR 04471 $203.99* RWBR 04472 $182.74* RWBR 04473 $181.75* RWBR 04474 $148.74* RWBR 04476 $195.49* RWBR 04478 $208.24* RWBR 04479 $144.49* RWBR 04481 $263.49* RWBR 04483 $293.24* RWBR 04484 $293.24* RWBR 04485 $165.74* RWBR 04487 $195.49* RWBR 04489 $216.74* RWBR 04490 $127.49* RWBR 04491 $127.49* RWBR 04492 $297.42* RWBR 04493 $148.74* RWBR 04494 $259.24* RWBR 04495 $288.99* RWBR 04497 $208.24* RWBR 04498 $216.74* RWBR 04499 $225.24 WORX 05001 $121.49* WORX 05002 $89.99 * WORX 05003 $89.99 * WORX 05005 $89.99 * WORX 05006 $94.49 * WORX 05007 $125.99 WORX 05008 $94.49 * WORX 05009 $107.99* WORX 05010 $125.99 WORX 05011 $85.49 * WORX 05012 $107.99* WORX 05013 $103.49* WORX 05014 $98.99 * WORX 05015 $121.49* Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 579 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price WORX 05016 $121.49* WORX 05017 $121.49* WORX 05018 $103.49 WORX 05019 $134.99 WORX 05020 $80.99 * WORX 05021 $80.99 * WORX 05022 $89.99 * WORX 05023 $112.49* WORX 05024 $112.49 WORX 05025 $116.99* WORX 05026 $116.99* WORX 05027 $130.49 WORX 05028 $130.49* WORX 05030 $112.49* WORX 05031 $112.49* WORX 05032 $121.49* WORX 05033 $116.99* WORX 05034 $116.99* WORX 05037 $107.99* WORX 05038 $125.99* WORX 05039 $82.61 * WORX 05040 $121.49* WORX 05041 $107.99* WORX 05042 $107.99* WORX 05043 $134.99 WORX 05044 $107.99* WORX 05045 $134.99* WORX 05046 $107.40 WORX 05048 $121.49 WORX 05049 $121.49* WORX 05050 $125.99 WORX 05099 $116.99* WORX 05100 $103.49* WORX 05101 $89.99 * WORX 05102 $90.87 * WORX 05103 $89.99 * WORX 05104 $89.99 * WORX 05105 $89.99 * WORX 05106 $107.99* WORX 05107 $107.99* WORX 05108 $121.49 WORX 05109 $89.99 * WORX 05110 $85.49 * WORX 05111 $103.49* WORX 05112 $94.49 * WORX 05113 $94.49 * Brand Style Price WORX 05114 $94.49 * WORX 05115 $94.49 * WORX 05116 $112.49* WORX 05117 $112.49* WORX 05118 $103.49* WORX 05119 $116.99* WORX 05120 $121.49* WORX 05121 $112.49* WORX 05122 $107.40* WORX 05123 $94.49 * WORX 05124 $116.99* WORX 05125 $112.49* WORX 05126 $130.49 WORX 05128 $123.92* WORX 05129 $125.99* WORX 05130 $80.99 * WORX 05131 $125.99* WORX 05132 $130.49* WORX 05133 $116.99* WORX 05134 $107.99* WORX 05135 $82.61 WORX 05136 $82.61 * WORX 05137 $112.49* WORX 05138 $107.99* WORX 05139 $112.49* WORX 05140 $116.99* WORX 05141 $103.49* WORX 05143 $116.99* WORX 05144 $130.49* WORX 05145 $130.49* WORX 05146 $107.40 WORX 05147 $112.49* WORX 05148 $116.99* WORX 05150 $143.99* WORX 05151 $143.99* WORX 05152 $143.99 WORX 05153 $112.49* WORX 05154 $130.49 WORX 05155 $121.49* WORX 05156 $139.49 WORX 05157 $125.99* WORX 05158 $107.99* WORX 05159 $116.99 WORX 05160 $116.99 WORX 05161 $152.99 WORX 05162 $143.99 Brand Style Price WORX 05164 $121.49 WORX 05165 $112.49* WORX 05169 $116.99* WORX 05175 $89.99 * WORX 05176 $89.99 * WORX 05182 $89.99 * WORX 05226 $89.99 * WORX 05227 $89.99 * WORX 05228 $98.99 * WORX 05266 $148.49 WORX 05275 $107.99* WORX 05290 $157.49 WORX 05300 $107.99* WORX 05301 $121.49* WORX 05302 $112.49* WORX 05303 $112.49* WORX 05305 $103.49* WORX 05334 $76.49 * WORX 05335 $116.99* WORX 05344 $76.49 * WORX 05345 $98.99 * WORX 05346 $130.49* WORX 05359 $143.99* WORX 05360 $89.99 * WORX 05364 $89.99 * WORX 05365 $76.49 * WORX 05367 $76.49 * WORX 05371 $107.99* WORX 05373 $121.49* WORX 05374 $121.49* WORX 05386 $85.49 WORX 05394 $76.49 * WORX 05395 $76.49 * WORX 05397 $76.49 * WORX 05400 $116.99* WORX 05401 $116.99* WORX 05402 $112.49* WORX 05403 $107.99* WORX 05404 $112.49* WORX 05405 $125.99* WORX 05406 $139.49 WORX 05407 $125.99* WORX 05408 $112.49* WORX 05409 $116.99* WORX 05411 $94.49 * WORX 05413 $112.49* Brand Style Price WORX 05417 $86.74 * WORX 05418 $112.49* WORX 05420 $116.99* WORX 05421 $143.99 WORX 05422 $130.49* WORX 05423 $130.49* WORX 05424 $148.49 WORX 05425 $148.49 WORX 05426 $125.99* WORX 05427 $139.49 WORX 05428 $134.99* WORX 05429 $166.49* WORX 05430 $89.99 * WORX 05432 $166.49* WORX 05433 $98.99 * WORX 05445 $98.99 * WORX 05454 $112.49* WORX 05455 $134.99* WORX 05469 $111.53 WORX 05473 $134.99* WORX 05481 $130.49* WORX 05486 $161.99* WORX 05489 $152.99* WORX 05491 $143.99 WORX 05492 $116.99* WORX 05500 $116.99* WORX 05501 $139.49 WORX 05503 $121.49* WORX 05504 $121.49* WORX 05505 $107.99* WORX 05507 $89.99 * WORX 05508 $94.49 * WORX 05509 $121.49* WORX 05510 $98.99 * WORX 05513 $107.99* WORX 05515 $89.99 * WORX 05525 $116.99* WORX 05526 $125.99* WORX 05529 $116.99* WORX 05535 $107.99* WORX 05536 $107.99* WORX 05547 $98.99 * WORX 05553 $107.99* WORX 05565 $107.99* WORX 05582 $94.49 * WORX 05584 $152.99 Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 580 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price WORX 05586 $134.99* WORX 05600 $134.99* WORX 05601 $143.99* WORX 05602 $103.49* WORX 05603 $148.49* WORX 05605 $130.49* WORX 05606 $161.99 WORX 05607 $112.49* WORX 05608 $94.49 * WORX 05609 $94.49 * WORX 05610 $143.99 WORX 05611 $166.49 WORX 05612 $103.49* WORX 05613 $143.99* WORX 05614 $134.99* WORX 05615 $125.99* WORX 05616 $94.49 * WORX 05617 $134.99* WORX 05618 $94.49 * RWBR 05619 $106.24* WORX 05620 $121.49* WORX 05621 $125.99* WORX 05622 $125.99* WORX 05623 $134.99* WORX 05624 $134.99* WORX 05625 $134.99* WORX 05626 $152.99* WORX 05627 $125.99* WORX 05628 $125.99* WORX 05629 $95.00 WORX 05630 $121.49* WORX 05631 $125.99* WORX 05632 $157.49* WORX 05633 $148.49* WORX 05634 $157.49 WORX 05635 $152.99 WORX 05650 $170.99 WORX 05660 $116.99* WORX 05661 $125.99* RWBR 05686 $161.49* WORX 05700 $179.99 WORX 05701 $143.99* WORX 05702 $161.99 WORX 05715 $134.99* WORX 05760 $112.49* WORX 05800 $130.49* Brand Style Price WORX 05801 $139.49* WORX 05802 $152.99* WORX 05803 $157.49* WORX 05805 $116.99* WORX 05806 $98.99 * WORX 05807 $94.49 * WORX 05808 $103.49* WORX 05810 $121.49* WORX 05815 $134.99* WORX 05817 $148.49* WORX 05823 $121.49* RWBR 05827 $114.74* WORX 05828 $166.49* WORX 05829 $179.99* WORX 05854 $116.99* WORX 05860 $125.99* RWBR 05889 $169.99* WORX 05906 $134.99* WORX 05908 $143.99* WORX 05909 $161.99 WORX 05910 $170.99 WORX 05911 $175.49 WORX 05917 $152.99* WORX 05918 $157.49 WORX 05923 $103.27* WORX 05924 $103.27* WORX 05981 $139.49* WORX 05982 $148.49* RWBR 06329 $110.49* RWBR 06330 $118.99* RWBR 06334 $118.99* RWBR 06337 $127.49* RWBR 06338 $135.99 RWBR 06341 $118.99* RWBR 06342 $118.99 RWBR 06343 $178.49 RWBR 06344 $152.99 RWBR 06345 $135.99* RWBR 06346 $135.99* RWBR 06347 $144.49* RWBR 06348 $144.49 RWBR 06349 $169.99 RWBR 06352 $178.49 RWBR 06353 $135.99* RWBR 06354 $148.74* WORX 06499 $143.99* Brand Style Price WORX 06500 $161.99* WORX 06510 $71.99 * WORX 06513 $98.99 WORX 06514 $67.49 * WORX 06550 $98.99 WORX 06552 $89.99 * WORX 06553 $85.49 * WORX 06555 $85.49 * WORX 06556 $94.49 * WORX 06558 $103.49 RWBR 06600 $152.99* RWBR 06601 $174.24* RWBR 06602 $148.74* RWBR 06603 $152.99 RWBR 06604 $148.74* RWBR 06605 $161.49* RWBR 06606 $174.24* RWBR 06607 $113.89* RWBR 06608 $161.49* RWBR 06609 $161.49* RWBR 06610 $118.99* RWBR 06611 $118.99* RWBR 06612 $148.74* RWBR 06613 $161.49* RWBR 06614 $203.99 RWBR 06617 $195.49 RWBR 06618 $169.99* RWBR 06620 $110.49* RWBR 06621 $110.49* RWBR 06622 $110.49* RWBR 06623 $110.49* RWBR 06629 $110.49* RWBR 06630 $118.99* RWBR 06633 $144.49* RWBR 06634 $127.49* RWBR 06640 $148.74* RWBR 06646 $118.99 RWBR 06647 $118.99* RWBR 06659 $165.74* RWBR 06660 $127.49* RWBR 06662 $178.49* RWBR 06663 $110.49* RWBR 06665 $110.49* RWBR 06667 $152.99* RWBR 06668 $152.99* RWBR 06670 $161.49 Brand Style Price RWBR 06671 $199.74* RWBR 06672 $182.74* RWBR 06673 $178.49* RWBR 06674 $191.24 RWBR 06675 $182.74* RWBR 06680 $191.24* RWBR 06681 $191.24 RWBR 06682 $148.74* RWBR 06683 $157.24* RWBR 06684 $157.24* RWBR 06690 $191.24* RWBR 06691 $165.74* RWBR 06692 $152.99 RWBR 06699 $106.24* RWBR 06700 $127.49 RWBR 06701 $152.99* RWBR 06702 $127.49* RWBR 06703 $131.74* RWBR 06704 $131.74* RWBR 06705 $140.24 RWBR 06706 $135.99* RWBR 06707 $140.24* RWBR 06708 $144.49 RWBR 06709 $127.49* RWBR 06710 $131.74* RWBR 06711 $135.99* RWBR 06712 $144.49 RWBR 06713 $135.99* RWBR 06714 $152.99 RWBR 06715 $144.49* RWBR 06716 $144.49* RWBR 06717 $123.24* RWBR 06719 $152.99 RWBR 06720 $152.99 RWBR 06721 $140.24* RWBR 06722 $140.24 RWBR 06782 $157.24* RWBR 06785 $165.74* RWBR 06791 $161.49* RWBR 06800 $157.24* RWBR 06801 $174.24* RWBR 08204 $165.74* RWBR 08207 $165.74* RWBR 08212 $152.99 RWBR 08215 $148.74* RWBR 08231 $191.24 Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 581 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price RWBR 08241 $165.74 RWBR 08242 $165.74* RWBR 08243 $165.74* RWBR 08244 $165.74* RWBR 08249 $157.24 RWBR 08264 $127.49 RWBR 08266 $101.99* RWBR 08701 $178.49 WORX 09233 $85.49 WORX 09305 $98.99 * WORX 09306 $98.99 * WORX 09307 $103.49* WORX 09308 $103.49* WORX 09311 $103.49* WORX 09312 $103.49* WORX 09605 $103.49* WORX 09606 $103.49* WORX 09607 $107.99* WORX 09608 $107.99* WORX 09611 $107.99* WORX 09612 $107.99* RWBR 59001 $123.24 RWBR 59003 $86.74 RWBR 59005 $86.74 * RWBR 59006 $135.99 RWBR 82231 $223.06 RWBR 82406 $239.59 RWBR 82408 $256.11 IRIW 83102 $134.99* IRIW 83104 $134.99* IRIW 83106 $112.49* IRIW 83108 $130.49* IRIW 83110 $134.99* IRIW 83112 $134.99* IRIW 83114 $143.99* IRIW 83116 $143.99* IRIW 83118 $134.99 IRIW 83120 $134.99 IRIW 83122 $116.99* IRIW 83200 $161.99* IRIW 83202 $130.49* IRIW 83204 $152.99* IRIW 83206 $161.99 IRIW 83208 $152.99* IRIW 83210 $179.99* IRIW 83212 $157.49* Brand Style Price IRIW 83214 $170.99* IRIW 83216 $197.99 IRIW 83218 $193.49* IRIW 83220 $161.99* IRIW 83222 $161.99* IRIW 83224 $157.49* IRIW 83226 $134.99* IRIW 83228 $144.58* IRIW 83230 $144.58 IRIW 83232 $139.49* IRIW 83234 $130.49* IRIW 83236 $166.49 IRIW 83238 $134.99 IRIW 83240 $134.99 IRIW 83242 $134.99 IRIW 83244 $157.49 IRIW 83300 $125.99 IRIW 83400 $175.49* IRIW 83402 $184.49 IRIW 83404 $157.49* IRIW 83406 $157.49* IRIW 83408 $116.99* IRIW 83410 $121.49 IRIW 83412 $188.99 IRIW 83414 $134.99* IRIW 83418 $139.49* IRIW 83420 $139.49* IRIW 83422 $148.49* IRIW 83426 $161.99* IRIW 83428 $161.99* IRIW 83430 $148.49* IRIW 83600 $175.49* IRIW 83602 $197.99 IRIW 83604 $139.49* IRIW 83606 $157.49 IRIW 83608 $130.49 IRIW 83610 $170.99* IRIW 83612 $130.49 IRIW 83614 $152.99 IRIW 83616 $143.99 IRIW 83618 $148.49 IRIW 83620 $188.99 IRIW 83622 $188.99 IRIW 83624 $139.49* IRIW 83626 $139.49* IRIW 83628 $188.99 Brand Style Price IRIW 83630 $188.99 IRIW 83632 $188.99 IRIW 83634 $139.49* IRIW 83636 $184.49 IRIW 83638 $161.99 IRIW 83640 $175.49 IRIW 83642 $175.49 IRIW 83644 $152.84 IRIW 83646 $144.58* IRIW 83648 $165.23 IRIW 83650 $169.36 IRIW 83652 $157.49 IRIW 83654 $188.99 IRIW 83656 $197.99 IRIW 83658 $197.99 IRIW 83660 $188.99 IRIW 83662 $139.49 IRIW 83664 $139.49 IRIW 83666 $139.49 IRIW 83670 $152.99 IRIW 83672 $152.99 IRIW 83674 $197.99 IRIW 83680 $157.49 IRIW 83682 $157.49* IRIW 83684 $157.49 IRIW 83686 $197.99 IRIW 83800 $184.49* IRIW 83802 $197.99 IRIW 83804 $148.49* IRIW 83806 $170.99* IRIW 83808 $166.49* IRIW 83810 $175.49* IRIW 83812 $193.49* IRIW 83814 $184.49* IRIW 83816 $139.49* IRIW 83818 $143.99* IRIW 83820 $247.49 IRIW 83822 $188.99* IRIW 83824 $148.49* IRIW 83826 $224.99 IRIW 83828 $206.99* IRIW 83830 $197.99* IRIW 83832 $197.99 IRIW 83834 $157.49 IRIW 83836 $157.49 IRIW 83838 $166.49 Brand Style Price IRIW 83840 $166.49* IRIW 83842 $206.99 IRIW 83844 $166.49 IRIW 83846 $177.62 IRIW 83848 $181.75* IRIW 83850 $173.49 IRIW 83852 $215.99 IRIW 83854 $206.99 IRIW 83856 $206.99 IRIW 83860 $170.99* IRIW 83864 $224.99 IRIW 83866 $197.99 IRIW 83876 $206.99 IRIW 83900 $184.49* IRIW 83902 $170.99* IRIW 83904 $161.99* IRIW 83906 $197.99 IRIW 83908 $161.99 IRIW 83910 $188.99* IRIW 83912 $197.99 IRIW 83914 $166.49* IRIW 83916 $179.99* IRIW 83918 $170.99* IRIW 83920 $188.99* IRIW 83924 $179.99* IRIW 83926 $179.99* IRIW 83928 $170.99* IRIW 83930 $197.99 IRIW 83932 $179.99* IRIW 83934 $179.99* IRIW 83936 $197.99 IRIW 83938 $197.99 IRIW 83940 $179.99* IRIW 83942 $179.99* IRIW 83944 $134.99* IRIW 83946 $134.99* IRIW 83948 $134.99* IRIW 83950 $134.99* IRIW 83952 $173.49 IRIW 83954 $197.99* IRIW 83956 $197.99 IRIW 83958 $179.99* IRIW 83960 $181.75* IRIW 83962 $197.99* IRIW 83964 $211.49 IRIW 83966 $211.49 Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 582 Effective Dates: October 17, 2022 - TBDCity of Denton Quote Pricing Printed on 10/17/2022 Penny Riley | RED WING STORE - DENTON | rwss627@redwingshoes.com Red Wing Authorized Dealer Brand Style Price IRIW 83968 $193.49* IRIW 83970 $206.99* IRIW 83972 $206.99 IRIW 83988 $206.99 IRIW 89000 $116.99* IRIW 89002 $121.49 IRIW 89010 $116.99 Red Wing Store - Dealer * These styles are discontinued and may have limited availability in store. Prices are subject to change depending on settings of program. To view your programs styles and pricing online, please visit redwingsafety.com/safety-boots?program=a2Z3k000000JSMSEA4 The new GSA contract number for Red Wing Brands of America, Inc. is 47QSWA22D00AB 583 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH RED WING BRANDS OF AMERICA, INC. THROUGH THE U.S. GENERAL SERVICES ADMINISTRATION'S (GSA) MAS SCHEDULE 47QSWA22D00AB, FOR SAFETY FOOT WEAR FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 8144 AWARDED TO RED WING BRANDS OF AMERICA, INC. IN THE NOT-TO- EXCEED AMOUNT OF $750,000.00). WHEREAS, pursuant to Local Government Code 271.103, the U.S. General Services Administration's (GSA) has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager, or a designated employee, has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the U.S. General Services Administration's (GSA) Cooperative Program at less cost than the City would expend if bidding these items individually; and WHEREAS, this procurement was undertaken as and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "File Number" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER 8144 VENDOR Red Wing Brands of America, Inc. AMOUNT $750,000.00 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the U.S. 584 General Services Administration's (GSA) Cooperative Program for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities, and for the specified sums contained in the bid documents, and related documents filed with the U.S. General Services Administration's (GSA) Cooperative Program, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in this ordinance wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the U.S. General Services Administration's (GSA) Cooperative Program, the City Manager, or their designated representative, is hereby authorized to execute the written contract which shall be referenced herein; provided that the written contract is in accordance with the terms, conditions, specifications, and standards contained in the Proposal submitted to the U.S. General Services Administration's (GSA) Cooperative Program, quantities, and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR 585 ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 586 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2192,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates,Inc.,for the design services of Neighborhoods 2 and 6 for the Capital Projects/Engineering Department as set forth in the contract;providing for the expenditure of funds therefor;and providing an effective date (RFQ 7599-010 - Professional Services Agreement for design services awarded to Kimley-Horn and Associates,Inc.,in the not- to-exceed amount of $5,726,000.00). The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™587 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc., for the design services of Neighborhoods 2 and 6 for the Capital Projects/Engineering Department as set forth in the contract; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7599-010 – Professional Services Agreement for design services awarded to Kimley- Horn and Associates, Inc., in the not-to-exceed amount of $5,726,000.00). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND Neighborhoods 2 and 6 contain 118 street segments associated with the 2019 Street Reconstruction Bond Program in the University of North Texas area and surrounding residential neighborhoods. The scope of the project includes 56,600 linear feet of roadway reconstruction, 30,700 linear feet of water main replacement, 28,400 linear feet of wastewater main replacement, sidewalk enhancements, and various lighting improvements. Capital Projects is focusing on a holistic neighborhood approach to minimize construction impacts and enhance coordination during the delivery of the 2019 Bond Program. This project is being delivered as the second Construction Manager at Risk (CM@R) project in the City of Denton (City) for horizontal construction. This delivery method leans heavily on collaboration among the City, the design engineer, and the CM@R during the design process to allow for the best schedule coordination, cost modeling, and community engagement. Statements of qualifications were sent to the City’s prequalified list of engineers requesting experience designing projects using alternative delivery methods, specifically CM@R. Upon ranking the received information, staff found Kimley-Horn and Associates, Inc. to have the most relevant CM@R experience, have current CM@R work in progress in Texas (including the City of Denton), and have available staff to complete the project within the schedule. Kimley-Horn and Associates, Inc. has provided design and construction phase services for many projects similar in size and cost to Neighborhood 2 & 6 including the City’s first CM@R Southeast Denton Package B. Based on Kimley-Horn and Associates, Inc.’s knowledge, the project team experience, and availability, staff has selected Kimley-Horn and Associates, Inc. as the best choice for Neighborhood 2 & 6 design. The 2019 Bond Program Extendable Commercial Paper Program (ECP) is being used for appropriation authority for this contract. The 2019 Bond Program ECP program was approved by City Council on April 6, 2020. The ECP program allows the City to better align bond issuances with the cash flow needs of the projects as part of the 2019 Bond Election. City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 588 Request for Qualifications for professional engineering services was solicited using the City’s formal solicitation process. City Council approved a pre-qualified list of engineering firms on May 18, 2021 (Ordinance 21-894). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On May 18, 2021, City Council approved RFQ 7599 for a prequalified list of professional engineering firms (Ordinance 21-894). On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Kimley-Horn and Associates, Inc., for the design services of Neighborhoods 2 and 6 for the Capital Projects/Engineering Department, in a not-to-exceed amount of $5,726,000. PRINCIPAL PLACE OF BUSINESS Kimley-Horn and Associates, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT This project will be started upon approval of the design and CM@R contracts with a completion date by Q4 2026. FISCAL INFORMATION These services will be funded from 2019 Street Reconstruction Bond account 350530473. Water Distribution and Wastewater Collections will be funding the design from accounts 630498523 & 640485545. Requisition #157109 has been entered into the Purchasing software system in the amount of $3,200. The budgeted amount for this item is $5,726,000. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Presentation Exhibit 3: Ordinance and Contract Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Seth Garcia, 940-349-8938. Legal point of contact: Marcella Lunn at 940-349-8333. 589 Neighborhood 2 & 6 2019 Street Reconstruction Bond Design Contract City Council –Nov. 1st, 2022 File ID 22-2192 590 Neighborhood 2 & 6 Project Overview 2 •56,600 Linear feet of roadway reconstruction (118 segments) •30,700 Linear feet of water main replacement •28,400 Linear feet of wastewater main replacement •Sidewalk connectivity assessment •Streetlighting photometric study & lighting install •*Second Construction Manager @ Risk project November 1, 2022 ID 22-2192 591 3 Design Summary Contract/Amendment Cost Fund Source Summary of Item Design Services (Lump Sum)$3,740,700.00 2019 Bond & Utility Funding Preliminary and Final Design for Roadway and Utilities, Topographic Survey, Geotech Analysis, and Illumination Study Hourly Additional Services $1,985,300.00 2019 Bond & Utility Funding Project Management, Coordination Meetings, Public Involvement, SUE Level B, Illumination Design, Temporary Construction Easements, Property Acquisition Services, Construction Phase Services, Record Drawings, and Reimbursable Expenses Total Contract Amount:$5,726,000.00 November 1, 2022 ID 22-2192 592 Neighborhood 2 & 6 •Design Approval November 1st, 2022 •CM@R design phase contract approval November 1st, 2022 •First construction packages Q1 2024 o Project to be phased during construction. •Construction Complete Q4 2026 4 Project Schedule November 1, 2022 ID 22-2192 593 Staff Recommendation Adoption of an ordinance authorizing the approval of a design contract between the City of Denton and Kimley-Horn & Associates, Inc •Contract is a not-to-exceed amount of $5,726,000.00 5November 1, 2022 ID 22-2192 594 Questions? 6November 1, 2022 ID 22-2192 595 ORDINANCE NO. ________________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES, INC., FOR THE DESIGN SERVICES OF NEIGHBORHOODS 2 AND 6 FOR THE CAPITAL PROJECTS/ENGINEERING DEPARTMENT AS SET FORTH IN THE CONTRACT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFQ 7599-010 PROFESSIONAL SERVICES AGREEMENT FOR DESIGN SERVICES AWARDED TO KIMLEY-HORN AND ASSOCIATES, INC., IN THE NOT- TO-EXCEED AMOUNT OF $5,726,000.00). WHEREAS, on May 18, 2021, the City Council approved a pre-qualified professional engineering list (Ordinance 21-894); and WHEREAS, the professional services provider ( being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with, and not higher than, the recommended practices and fees published by the professional , and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or their designee, is hereby authorized to enter into an agreement with Kimley-Horn and Associates, Inc., for the design services of Neighborhoods 2 and 6 for the Capital Projects/Engineering Department, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager, or their designee, is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. 596 The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 597 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E Cori Power 7599-010PSA CMAR Neighborhood 2 & 6 Design Not Applicable 598 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 1 of 18 CITY OF DENTON, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONAL SERVICES This AGREEMENT is between the City of Denton, a Texas home-rule municipality ("CITY"), and Kimley-Horn and Associates, Inc., with its corporate office at 100 W Oak Street, Suite 203, Denton, Texas 76201 and authorized to do business in Texas, ("ENGINEER"), for a PROJECT generally described as: CMAR Neighborhood 2 & 6 Improvements Design (the "PROJECT"). SECTION 1 Scope of Services A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agrees to perform, professional engineering services set forth in the Scope of Services attached hereto as Attachment A. These services shall be performed in connection with the PROJECT. B. Additional services, if any, will be requested in writing by the CITY. CITY shall not pay for any work performed by ENGINEER or its consultants, subcontractors and/or suppliers that has not been ordered in advance and in writing. It is specifically agreed that ENGINEER shall not be compensated for any additional work resulting from oral orders of any person. SECTION 2 Compensation and Term of Agreement A. The ENGINEER shall be compensated for all services provided pursuant to this AGREEMENT in an amount not to exceed $5,726,000 in the manner and in accordance with the fee schedule as set forth in Attachment B. Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment A. B. Unless otherwise terminated pursuant to Section 6. D. herein, this AGREEMENT shall be for a term beginning upon the effective date, as described below, and shall continue for a period which may reasonably be required for the completion of the PROJECT, until the expiration of the funds, or completion of the PROJECT and acceptance by the CITY, whichever occurs first. ENGINEER shall proceed diligently with the PROJECT to completion as described in the PROJECT schedule as set forth in Attachment D. SECTION 3 Terms of Payment Payments to the ENGINEER will be made as follows: DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 599 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 2 of 18 A. Invoice and Payment (1) The Engineer shall provide the City sufficient documentation, including but not limited to meeting the requirements set forth in the PROJECT schedule as set forth in Attachment D to reasonably substantiate the invoices. (2) The ENGINEER will issue monthly invoices for all work performed under this AGREEMENT. Invoices for the uncontested performance of the particular services are due and payable within 30 days of receipt by City. (3) Upon completion of services enumerated in Section 1, the final payment of any balance for the uncontested performance of the services will be due within 30 days of receipt of the final invoice. (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. SECTION 4 Obligations of the Engineer A. General The ENGINEER will serve as the CITY's professional engineering representative under this AGREEMENT, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The ENGINEER shall perform its services: (1) with the professional skill and care ordinarily provided by competent engineers practicing in the same or similar locality and under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 600 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 3 of 18 C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment A. (2) In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the original drawings of all plans in ink on reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein. E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on-site representatives or otherwise, do not make the ENGINEER or its personnel in any way responsible for those duties that belong to the CITY and/or the CITY's construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the AGREEMENT Documents and any health or safety precautions required by such construction work. The ENGINEER and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in Attachment A, the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site to become familiar with the progress or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 601 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 4 of 18 PROJECT, when completed, will be in accordance with the AGREEMENT Documents, nor shall anything in the AGREEMENT Documents or this AGREEMENT between CITY and ENGINEER be construed as requiring ENGINEER to make exhaustive or continuous on-site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the ENGINEER makes on-site observation(s) of a deviation from the AGREEMENT Documents, the ENGINEER shall inform the CITY. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon such certification to establish materials, systems or equipment and performance criteria to be required in the AGREEMENT Documents. F. Opinions of Probable Cost, Financial Considerations, and Schedules (1) The ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment A. (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENGINEER's opinions, analyses, projections, or estimates. G. Construction Progress Payments Recommendations by the ENGINEER to the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER's knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the ENGINEER to ascertain that the construction contractor has completed the work in exact accordance with the AGREEMENT Documents; that the final work will be acceptable in all respects; that the ENGINEER has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work, materials, or equipment has passed to the CITY free and clear of liens, claims, security interests, or encumbrances; or that there are not other matters at issue between the CITY and the DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 602 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 5 of 18 construction contractor that affect the amount that should be paid. H. Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Right to Audit (1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after final payment under this AGREEMENT, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this AGREEMENT. ENGINEER agrees that the CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CITY shall give ENGINEER reasonable advance notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this section together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits. (3) ENGINEER and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 603 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 6 of 18 J. INSURANCE (1) ENGINEER’S INSURANCE a. Commercial General Liability – the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. i. The CITY shall be included as an additional insured with all rights of defense under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless the CITY specifically approves such exclusions in writing. ii. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this AGREEMENT. b. Business Auto – the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of “any auto”, including owned, hired, and non-owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non-owned is acceptable. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this AGREEMENT or under any applicable auto physical damage coverage. c. Workers’ Compensation – ENGINEER shall maintain workers compensation and employers liability insurance and, if necessary, DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 604 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 7 of 18 commercial umbrella liability insurance with a limit of not less than $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer’s liability or commercial umbrella insurance obtained by ENGINEER pursuant to this AGREEMENT. d. Professional Liability – ENGINEER shall maintain professional liability, a claims-made policy, with a minimum of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the AGREEMENT or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of 5 years following the completion of the AGREEMENT. An annual certificate of insurance specifically referencing this PROJECT shall be submitted to the CITY for each year following completion of the AGREEMENT. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be attached to this AGREEMENT prior to its execution. b. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, subject to any defense provided by the policy, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this AGREEMENT are provided under applicable policies documented thereon. d. Any failure on part of the CITY to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. e. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the respective Department Director (by name), City of Denton, 901 Texas Street, Denton, Texas 76209. f. Insurers for all policies must be authorized to do business in the State of DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 605 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 8 of 18 Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first-dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY. h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. i. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims-made basis, shall contain a retroactive date coincident with or prior to the date of the AGREEMENT. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. l. The CITY shall not be responsible for the direct payment of any insurance premiums required by this AGREEMENT. m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. K. Independent Consultant The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. The doctrine of respondeat superior shall not apply. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 606 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 9 of 18 L. Disclosure The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The ENGINEER further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this AGREEMENT and prior to final payment under the AGREEMENT. M. Asbestos or Hazardous Substances (1) If asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CITY may request the ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. N. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this AGREEMENT was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this AGREEMENT which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. O. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment D to this AGREEMENT. P. Equal Opportunity (1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agents shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this AGREEMENT. (2) Americans with Disabilities Act (ADA) Compliance: ENGINEER and DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 607 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 10 of 18 ENGINEER’s agents shall not engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. SECTION 5 Obligations of the City A. City-Furnished Data ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the ENGINEER as required for the ENGINEER's performance of its services. The CITY will perform, at no cost to the ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGINEER's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights-of-way, and access necessary for the ENGINEER's services or PROJECT construction. D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the PROJECT schedule prepared in accordance with Attachment D. E. Prompt Notice The CITY will give prompt written notice to the ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges ENGINEER will perform part of the work at CITY's DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 608 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 11 of 18 facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases ENGINEER from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of ENGINEER’s negligence or if ENGINEER brings such hazardous substance, contaminant or asbestos onto the PROJECT. G. Contractor Indemnification and Claims The CITY agrees to include in all construction contracts the provisions of Article IV.E. regarding the ENGINEER's Personnel at Construction Site, and provisions providing for contractor indemnification of the CITY and the ENGINEER for contractor's negligence. H. Contractor Claims and Third-Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the ENGINEER, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the ENGINEER." (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER and there are no third-party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third-party beneficiary rights under this AGREEMENT. (4) Nothing contained in this Section H. shall be construed as a waiver of any right the CITY has to bring a claim against ENGINEER. I. CITY's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY may secure Builders Risk/Installation insurance at the replacement DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 609 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 12 of 18 cost value of the PROJECT. The CITY may provide ENGINEER a copy of the policy or documentation of such on a certificate of insurance. J. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. K. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. SECTION 6 General Legal Provisions A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the CITY's sole risk. The CITY shall own the final designs, drawings, specifications and documents. C. Force Majeure The ENGINEER is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER that prevent ENGINEER’s performance of its obligations hereunder. D. Termination (1) This AGREEMENT may be terminated: DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 610 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 13 of 18 a. by the City for its convenience upon 30 days' written notice to ENGINEER. b. by either the CITY or the ENGINEER for cause if either party fails substantially to perform through no fault of the other and the nonperforming party does not commence correction of such nonperformance within 5 days’ written notice or thereafter fails to diligently complete the correction. (2) If this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a. Cost of reproduction of partial or complete studies, plans, specifications or other forms of ENGINEER'S work product; b. Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c. The time requirements for the ENGINEER'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY'S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made. F. Indemnification IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904, THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST LIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’S LIABILITY. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 611 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 14 of 18 G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Denton County, Texas. I. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Sections 5.F., 6.B., 6.D., 6.F., 6.H., and 6.I. shall survive termination of this AGREEMENT for any cause. J. Observe and Comply ENGINEER shall at all times observe and comply with all federal and State laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY ARISING OUT OF THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION, WHETHER IT BE BY ITSELF OR ITS EMPLOYEES. K. Immigration Nationality Act ENGINEER shall verify the identity and employment eligibility of its employees who perform work under this AGREEMENT, including completing the Employment Eligibility Verification Form (I-9). Upon request by CITY, ENGINEER shall provide CITY with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this AGREEMENT. ENGINEER shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any ENGINEER employee who is not legally eligible to perform such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have the DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 612 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 15 of 18 right to immediately terminate this AGREEMENT for violations of this provision by ENGINEER. L. Prohibition On Contracts With Companies Boycotting Israel Engineer acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. M. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. N. Prohibition on Contracts with Companies Boycotting Certain Energy Companies Engineer acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. O. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 613 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 16 of 18 Engineer acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. P. Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Engineer is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. Q. 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 as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of Interest Questionnaire. R. Agreement Documents This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, which supersedes all prior written or oral understandings, and may only be DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 614 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 17 of 18 changed by a written amendment executed by both parties. This AGREEMENT may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The following attachments and schedules are hereby made a part of this AGREEMENT: Attachment A - Scope of Services Attachment B - Compensation Attachment C – Changes and Amendments to Standard Agreement Attachment D - Project Schedule Attachment E - Location Map These documents make up the AGREEMENT 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 AGREEMENT documents, the inconsistency or conflict shall be resolved by giving precedence first to the written AGREEMENT then to the AGREEMENT documents in the order in which they are listed above. 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. Duly executed by each party’s designated representative to be effective on _____________________________. BY: CITY OF DENTON, TEXAS BY: ENGINEER Sara Hensley, City Manager Kimley-Horn and Associates, Inc. Authorized Signor, Title Date: ____________________________ ________________________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 9/29/2022 2022-938608 615 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 3/22/22 Page 18 of 18 ATTEST: ROSA RIOS, CITY SECRETARY BY: _______________________________ THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _____________________________ Signature _____________________________ Title _____________________________ Department Date Signed: _________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _______________________________ DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E Capital Projects/Engineering 9/30/2022 Director of Capital Projects/City Engineer 616 Neighborhood 2 &6 Improvements 1 of 17 September 9, 2022 ATTACHMENT "A" NEIGHBORHOOD 2 &6 IMPROVEMENTS Scope of Services PROJECT UNDERSTANDING The Scope of Services consists of design and construction phase services for full depth street reconstruction and utility replacement in the Neighborhood 2 & 6 area,as defined in Attachment E.This scope of services consists of the following: Approximately 56,600 linear feet of road reconstruction with subgrade stabilization, asphalt paving, concrete curb and gutter, and driveway replacements. Relocations of approximately 30,700 linear feet of 6-inch through 12-inch water main and 28,400 linear feet of 6-inch through 12-inch sanitary sewer. Relocation of approximately 161 properties utility services from an existing alley to the proposed utility line in the street right-of-way. Stormwater replacement within Neighborhood 2 & 6 area as determined necessary during design. Sidewalk improvements within Neighborhood 2 & 6 area as determined necessary during design. Photometric illumination study. The ENGINEER understands the Project will be delivered via Construction Manager at Risk (CM@R). SCOPE OF SERVICES The ENGINEER will perform its services pursuant to the requirements delineated with ATTACHMENT "A".Services under this attachment consist of the following tasks: Task 1 –Project Management Task 2 –Coordination Meetings Task 3 –Public Involvement Task 4 –Data Collection Task 5 –Roadway Design Task 6 –Pedestrian Improvements Task 7 –Utility Design Task 8 –Illumination Design Task 9 –Construction Phase Services Task 10 –Record Drawings Task 11 –Property Acquisition Services DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 617 Neighborhood 2 &6 Improvements 2 of 17 September 9, 2022 Task 1 Project Management Task 1.1 Kick-off Meeting and Risk Workshop The ENGINEER will conduct a kick-off meeting and risk workshop with the project team to determine design criteria,project schedule, discuss project responsibilities,and create a risk register with the following: Critical issues affecting project completion Significant project considerations Permit requirements Action plan for each identified risk Task 1.2 Monthly Status Reports and Invoicing The ENGINEER will provide monthly invoices and status reports. Task 1.3 Permitting The CITY will be responsible for administration of all permits. The ENGINEER will provide exhibits and information necessary for permit approval.The ENGINEER understands the following permits will be required: TxDOT Utility Installation Request (UIR) Task 1.4 CM@R Program Documentation The ENGINEER will assist the CITY with CM@R program documentation. The ENGINEER will attend one (1) work session with the project team to discuss processes,procedures, and lessons learned as they relate to the CM@R delivery method. Assumptions: The kick-off meeting and risk workshop will occur after the CM@R has been selected by the City. It is assumed Project Management will be required for forty-eight (48)months. Additional Project Management will be considered Additional Services. Deliverables: Risk register Monthly invoices and status reports Meeting agendas and meeting notes CM@R lessons learned DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 618 Neighborhood 2 &6 Improvements 3 of 17 September 9, 2022 Task 2 Coordination Meetings Task 2.1 Coordination Meetings with Project Team The ENGINEER will conduct and document biweekly (every two weeks)coordination meetings with the project team and other key stakeholders.During these meetings, the design team will discuss design elements, challenges, and make decisions regarding any proposed design options. Task 2.2 Franchise Utility Coordination The ENGINEER will coordinate with franchise utility companies within the project area to obtain existing line maps,determine potential conflicts, and provide conflict information to the CITY for further coordination.The ENGINEER will assist the CITY in review of any franchise utility relocation plans.Up to seventy (70)hours will be spent on franchise utility coordination.Any additional time spent beyond the allotted seventy (70)hours will be considered additional services. Task 2.3 UNT Coordination The ENGINEER will conduct and document an additional four (4)meetings with University of North Texas (UNT)staff. These additional meetings will focus on project segments within the UNT campus to coordinate design alternatives, constructability, and schedule. Assumptions: It is assumed Coordination Meetings will be required for thirty-six (36)months. Additional Coordination Meetings will be considered Additional Services. It is assumed Coordination Meetings with Project Team will occur virtually. Franchise Utility Coordination and UNT coordination may be virtual or in-person. Deliverables: Meeting agendas and meeting notes Task 3 Public Involvement Task 3.1 Public Meetings The ENGINEER will prepare materials, attend, and document as needed for up to three (3) public meetings for each project area, totaling fifteen (15)meetings. The CITY will be responsible for selecting and scheduling meeting location and distributing notifications to the public either through mailers, social media, or email. It is anticipated the public meetings will occur during final design, pre-construction, and during construction. Task 3.2 Project Informational Materials The ENGINEER will assist the CITY with updated project information and materials to be used in council meetings and for a project website. Assumptions: It is assumed there will be up to five (5) project areas. It is assumed a public meeting following the Conceptual Design (30%) submittal will be through a video provided by the City. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 619 Neighborhood 2 &6 Improvements 4 of 17 September 9, 2022 Deliverables: Public meeting materials and meeting notes Project informational materials Task 4 Data Collection Task 4.1 Data Collection and Analysis The ENGINEER will collect data to develop a base map. This information will be utilized to analyze existing constraints and issues for the development of the conceptual design.The following elements will be used to develop the base map. 4.1.1 Aerial Photography –The ENGINEER will collect aerial photography for the project corridor from NearMaps and/or available aerial photos from the CITY. 4.1.2 Available Record Drawing Research –The ENGINEER will collect any available record drawings from the CITY within the project limits. 4.1.3 Available CITY GIS utility information –The ENGINEER will utilize the CITY’s online GIS information to compile utility information for the study area. 4.1.4 Field Observation –The ENGINEER will conduct up to five (5) site visits to visually document the existing conditions with the CM@R. 4.1.5 Utility Data Collection –The ENGINEER will meet with the CITY to discuss historical, existing, and future conditions along the project corridor. Task 4.2 Topographic and Boundary Survey The ENGINEER will prepare a topographic survey and right-of-way determination to be used for civil engineering design purposes. The topographic survey is to be used in-house and will not be issued as a stand-alone survey document. 4.2.1 The limits of survey will include ten (10) feet beyond existing right-of-way and fifty (50) feet beyond the construction limits for each segment of the project area identified in Attachment E. 4.2.2 The survey will consist of: the location of the right-of-way lines and adjoining property lines with existing easements readily available in the public record (this does not include an abstract of title);elevations; contour lines representing the surface of the existing ground at one foot intervals based on a survey grid system and tied to existing control points;observed (only if clearly visible from the surface) locations of existing water, sewer,storm drain, franchise utility facility appurtenances,trees, shrubs, and flowerbeds;pavement, sidewalk, and other visible corridor improvements,and benchmarks established with the survey. Task 4.3 Geotechnical Analysis The ENGINEER will utilize a subconsultant to perform geotechnical analysis to determine an asphalt pavement and subgrade treatment recommendation.Up to one hundred twenty-three (123) bore holes will be completed for the analysis.Additional soil analysis will be obtained for recommendations to be used in retaining wall design. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 620 Neighborhood 2 &6 Improvements 5 of 17 September 9, 2022 Task 4.4 Subsurface Utility Engineering (SUE) The ENGINEER will, via a sub-consultant, expose certain utilities using SUE methods and collect survey data on their exposed location. This information will be used during civil engineering design. SUE qualities are described as follows: 4.4.1 Level B Subsurface Utility Exploration o Quality Level B (QL-B)involves the application of appropriate surface geophysical methods to determine the existence and horizontal position of virtually all utilities within the project limits. This activity is called "designating".The information obtained in this manner is surveyed to project control. It addresses problems caused by inaccurate utility records, abandoned or unrecorded facilities, and lost references. o SUE QL-B fee is based on an average of six (6)underground utilities for roughly 57,600 linear feet. If there are additional utility lines,or we need to obtain more than 57,600 linear feet for each utility, additional fee may be needed. Additional Level B SUE will be considered additional services. 4.4.2 Level A Subsurface Utility Exploration o Quality Level A (QL-A), also known as “locating”, is the highest level of accuracy presently available and involves the full use of subsurface utility engineering services. It provides information for the precise plan and profile mapping of underground utilities through the nondestructive exposure of underground utilities. QL-A provides the type, size, condition, material, and other characteristics of underground features. o SUE QL-A fee is based on obtaining up to twenty (20)test holes within the limits of Attachment E.Test hole information will be provided in the construction drawings in a table format. Any additional test holes needed will be considered additional services. Deliverables: Geotechnical Report Task 5 Roadway Design The ENGINEER will prepare construction plans, specifications, and estimates for full depth reconstruction of the street segments identified in Attachment E per CITY standards. All streets will be reconstructed to match existing section widths unless determined otherwise during design. Due to the size of the project, it is assumed that there will be up to five (5)separate submittal packages for each design phase (30%, 60%,90%, and 100%).The ENGINEER will collaborate with the CM@R on project phasing to determine a submittal plan that adheres to the overall project schedule set in Task 1.Any additional plan submittals will be considered Additional Services. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 621 Neighborhood 2 &6 Improvements 6 of 17 September 9, 2022 Task 5.1 Conceptual Design (30%) 5.1.1 The ENGINEER will prepare a 22”x34”Conceptual (30%)Plan Set consisting of the following elements: o Cover sheet and index of sheets o Project control o Utility layout Existing and proposed horizontal layout Utility design will be performed under Task 7 o Roadway typical sections Existing and Proposed o Removals o Roadway plan and profile drawings at 1”=20’ horizontal and 1”=4’vertical scale. o Sidewalk and curb ramps Sidewalk and curb ramp design will be performed under Task 6 o Pavement markings and signage o Existing stormwater horizontal layout o Retaining wall layout o Standard construction details o Conceptual summary of quantities o Specification listing 5.1.2 The ENGINEER will provide review of the CM@R’s conceptual deliverable. 5.1.3 The ENGINEER will conduct a Conceptual Design (30%) review meeting for each project area to review and respond to all comments received from the project team. 5.1.4 The ENGINEER will attend one (1)meeting with the CM@R to obtain input for revisions to the construction sequencing, traffic control and detour plans for each project area. Task 5.2 Preliminary Design (60%) 5.2.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a 22”x34”Preliminary (60%)Plan Set consisting of the elements in Task 5.1 as well as the following elements: o General notes o Traffic control and detour plans The ENGINEER will develop the construction sequencing,traffic control and overall detour plans based upon guidance from the CM@R. o Erosion control plans o Custom construction details o Preliminary summary of quantities o Specifications and special provisions 5.2.2 The ENGINEER will provide review of the CM@R’s preliminary deliverable. 5.2.3 The ENGINEER will conduct and document a Preliminary Design (60%) review meeting for each project area to review and respond to all comments received from the project team. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 622 Neighborhood 2 &6 Improvements 7 of 17 September 9, 2022 5.2.4 The ENGINEER will attend one (1)meeting with the CM@R to develop the construction sequencing, traffic control and detour plans for each project area. Task 5.3 Final Design (90%) 5.3.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a 22”x34”Final (90%)Plan Set consisting of the elements in Task 5.2 as well as the following elements: o Retaining wall plan and profile drawings at 1”=20’ horizontal and 1”=4’ vertical scale. o Cross sections at fifty (50)foot increments o Final summary of quantities o Final specifications and special provisions 5.3.2 The ENGINEER will provide review of the CM@R’s final deliverable. 5.3.3 The ENGINEER will conduct and document a Final Design (90%)review meeting for each project area to review and respond to all comments received from the project team. Task 5.4 Final Sealed (100%)Submittal 5.4.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a Final Sealed (100%)Plan Set consisting of the elements in Task 5.3 as well as the following elements: o Final summary of quantities o Final sealed specifications and special provisions 5.4.2 The ENGINEER will provide review of the CM@R’s Guaranteed Maximum Price (GMP). Assumptions: It is assumed there will be up to five (5) project areas. Deliverables: Digital 22”x34”PDF Plan Set for Conceptual (30%), Preliminary (60%),Final (90%), and Final Sealed (100%)Roadway Design. o Up to three (3) 22”x34”hard copies may be submitted at the CITY’s request. Meeting notes for Conceptual (30%), Preliminary (60%),and Final (90%)Roadway Design review meetings. ENGINEER’s GMP review for Conceptual (30%), Preliminary (60%),Final (90%),and Final Sealed (100%)Roadway Design. Task 6 Pedestrian Improvements Task 6.1 Sidewalk Design The ENGINEER will provide design for the construction of new and reconstruction of existing pedestrian facilities to meet Americans with Disabilities Act (ADA)compliance as determined by DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 623 Neighborhood 2 &6 Improvements 8 of 17 September 9, 2022 the project team during Task 4.The following design elements will be included with Task 5 deliverables: Sidewalk and curb ramp horizontal location Curb ramp detail sheets Pedestrian crossing design as determined with City and stakeholder coordination Task 6.2 Accessibility Review The ENGINEER will utilize a subconsultant that is a Registered Accessibility Specialist (RAS) for the purposes of reviewing the proposed sidewalk improvement for conformance with the Texas Accessibility Standards (TAS).The ENGINEER will coordinate with the RAS for project registration with the Texas Department of Licensing and Regulation (TDLR),plan review,and project inspection on site, upon completion of construction. The ENGINEER will make one (1) round of revisions to the plans based on comments received from the RAS. Inspection, plan review,and registration fees for TDLR are included in this fee. Assumptions: It is assumed there will be one (1) accessibility review for the entire project limits. Task 7 Utility Design The ENGINEER will prepare construction plans,specifications,and estimates for the relocation of the water and sanitary sewer line segments identified in Attachment E per CITY standards. Due to the size of the project, it is assumed that there will be up to five (5)separate submittal packages for each design phase (30%, 60%,90%, and 100%).The ENGINEER will collaborate with the CM@R on project phasing to determine a submittal plan that adheres to the overall project schedule set in Task 1.Any additional plan submittals will be considered Additional Services. Task 7.1 Water Design 7.1.1 The ENGINEER will prepare the following items for the construction plan set: o Horizontal layouts for all water line relocations and necessary appurtenances. o Vertical profiles for all water line relocations and necessary appurtenances providing the required clearance from all known conflicts. o Water line details, including connection details. o Sequencing notes for shutdown and connection sequencing plans. o Abandonment layouts as needed. o Temporary and permanent easements as needed. o Design tunnels/bores including casing/tunnel liner plate minimum thickness and inside diameter, shafts, allowable methods, control of ground water, and appropriate tolerances with the chosen method. Task 7.2 Sanitary Sewer Design 7.2.1 The ENGINEER will prepare the following items for the construction plan set: o Horizontal layouts for all sanitary sewer line relocations and necessary appurtenances. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 624 Neighborhood 2 &6 Improvements 9 of 17 September 9, 2022 o Vertical profiles for all sanitary sewer line relocations and necessary appurtenances providing the required clearance from all known conflicts. o Sanitary sewer line details. o Sequencing notes for shutdown and connection sequencing plans. o Abandonment layouts as needed. o Temporary and permanent easements as needed. o Design tunnels/bores including casing/tunnel liner plate minimum thickness and inside diameter, shafts, allowable methods, control of ground water,and appropriate tolerances with the chosen method. Task 7.3 Utility Service Relocations As a part of the utility replacements in the street right-of-way, the CITY desires to eliminate water and sewer service from alleys and provide new service locations in the street parkway for approximately one-hundred sixty-one (161)properties. 7.3.1 The ENGINEER will provide up to four (4) plan sheets identifying the location of the Northing and Easting’s of the public meter and/or cleanout and identify the approximate linear footage of private plumbing required to relocate the private services. Task 7.4 Conceptual Design (30%) 7.4.1 The ENGINEER will prepare a 22”x34”Conceptual (30%)Plan Set consisting of the following elements: o Cover sheet and index of sheets o Waterline layout Existing and proposed horizontal layout Identify potential conflicts o Sanitary sewer line layout Existing and proposed horizontal layout Identify potential conflicts o Standard construction details o Conceptual summary of quantities o Specification listing 7.4.2 The ENGINEER will provide review of the CM@R’s conceptual deliverable. 7.4.3 The ENGINEER will conduct a Conceptual Design (30%) review meeting for each project area to review and respond to all comments received from the project team. Task 7.5 Preliminary Design (60%) 7.5.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a Preliminary Design (60%)Plan Set consisting of the elements in Task 6.3 as well as the following elements: o Abandonment layout o Waterline plan and profile drawings at 1”=40’ horizontal and 1”=4’vertical scale o Sanitary sewer line plan and profile drawings at 1”=40’ horizontal and 1”=4’ vertical scale DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 625 Neighborhood 2 &6 Improvements 10 of 17 September 9, 2022 o Plan view of the base map shall have all above ground features shown and clearly labeled along with existing utilities based on field ties and record information. o Plan view shall include design notes for stationing, size,slope, pipe material, embedment, length and construction method. o Profile view shall include design notes for stationing, size, slope, flow-line of pipe, pipe material,embedment, length and construction method. o Standard construction details o Preliminary water line details, including connection details. o Traffic control and detour plans The ENGINEER will develop the construction sequencing,traffic control and overall detour plans based upon guidance from the CM@R. o Preliminary summary of quantities o Specifications and special provisions 7.5.2 The ENGINEER will provide review of the CM@R’s preliminary deliverable. 7.5.3 The ENGINEER will conduct and document a Preliminary Design (60%) review meeting for each project area to review and respond to all comments received from the project team. Task 7.6 Final Design (90%) 7.6.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a Final Design (90%)Plan Set consisting of the elements in Task 6.4 as well as the following elements: o Surface repair sheets and details as needed o Final summary of quantities o Final specifications and special provisions 7.6.2 The ENGINEER will provide review of the CM@R’s final deliverable. 7.6.3 The ENGINEER will conduct and document a Final Design (90%) review meeting to review and respond to all comments received from the project team. Task 7.7 Final Sealed (100%)Submittal 7.7.1 The ENGINEER will respond to and address one (1) round of comments provided by the CITY and CM@R and prepare a Final Sealed Design (100%)Plan Set consisting of the elements in Task 6.4 as well as the following elements: o Final summary of quantities o Final specifications and special provisions 7.7.2 The ENGINEER will provide review of the CM@R’s GMP. Deliverables: Digital 22”x34”PDF Plan Set for Conceptual (30%), Preliminary (60%),Final (90%), and Final Sealed (100%)Utility Design. o Up to three (3) 22”x34”hard copies may be submitted at the CITY’s request. Meeting notes for Conceptual (30%),Preliminary (60%),and Final (90%)Utility Design review meetings. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 626 Neighborhood 2 &6 Improvements 11 of 17 September 9, 2022 ENGINEER’s GMP review for Conceptual (30%), Preliminary (60%),Final (90%),and Final Sealed (100%)Utility Design. Assumptions: It is assumed there will be up to five (5) project areas. Task 8 Illumination Design Task 8.1 Kick-off Meeting The ENGINEER will conduct a kick-off meeting with the CITY, Denton Municipal Electric (DME), and UNT to determine design criteria and preferred light fixtures. Task 8.2 Photometric Analysis 8.2.1 The ENGINEER will provide a photometric analysis for the street segments identified in Attachment E based on existing infrastructure. Existing fixture locations and specification to be provided by DME. 8.2.2 The ENGINEER will provide a photometric analysis for the street segments identified in Attachment E based on proposed infrastructure in accordance with CITY and DME requirements.Proposed fixture specifications to be provided by DME.The photometric analysis will consist of modeling fixtures to meet roadway illumination level requirements. 8.2.3 The ENGINEER will prepare a 22”x34”photometric exhibit for each street segment to be submitted with the Task 5 Conceptual Design (30%) submittal. Task 8.3 Illumination Design The ENGINEER will prepare construction plans, specifications,and estimates for illumination design of up to fifty percent (50%) of the segments identified in Attachment E per CITY standards.The segments to be designed will be determined by CITY staff. 8.3.1 The ENGINEER will gather available as-built information from the CITY including existing lighting infrastructure.As-built information received from the CITY will be visually verified in the field. 8.3.2 The ENGINEER will meet on-site with CITY street lighting staff to determine street light circuit configurations.The ENGINEER will also meet on-site with DME to determine service feed options for the proposed street lighting. 8.3.3 The ENGINEER will prepare the illumination plans in accordance with CITY guidelines.The following design elements will be included with Task 5 Preliminary (60%),Final (90%),and Final Sealed (100%)deliverables: o Existing Conditions and Removals o Proposed Illumination Layout o Wiring Charts o Summary Sheets DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 627 Neighborhood 2 &6 Improvements 12 of 17 September 9, 2022 o Electrical Service Panel Schedules Deliverables: Digital 22”x34”PDF Exhibits for Photometric Analysis with Conceptual (30%) deliverables. Digital 22”x34”PDF Plans for Illumination Design with Preliminary (60%),Final (90%), and Final Sealed (100%)deliverables. Assumptions: Illumination design will be completed for up to fifty percent (50%) of project segments. Task 9 Construction Phase Services Task 9.1 Pre-Construction Conference The ENGINEER will attend a pre-construction conference prior to commencement of work at the site for each project area. Task 9.2 Regular Construction Meetings The ENGINEER will attend monthly construction meetings with the project team. Task 9.3 Site Visits 9.3.1 The ENGINEER will conduct one (1) site visit for the entire project limits each month during construction and perform construction observation. 9.3.2 The ENGINEER shall not, during such visits or as a result of such observations of the CM@R’s work in progress, supervise, direct, or have control of the CM@R’s work, nor shall the ENGINEER have authority over or responsibility for the means, methods, techniques, equipment choice and usage, sequences, schedules,or procedures of construction selected by the CM@R, for safety precautions and programs incident to the CM@R’s work, nor for any failure of the CM@R to comply with laws and regulations applicable to the CM@R’s furnishing and performing the work.Accordingly,the ENGINEER neither guarantees the performance of any contractor nor assumes responsibility for any of the CM@R’s failure to furnish and perform its work in accordance with the Contract Documents. Task 9.4 Recommendations with Respect to Defective Work Provide recommendations to the CITY that CM@R’s work be disapproved and rejected while it is in progress if,on the basis of site visit evaluations,the ENGINEER believes such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents.Notwithstanding the foregoing, the CITY reserves the right to disapprove or reject the CM@R’s work without a recommendation from the ENGINEER. Task 9.5 Clarifications and Interpretations Issue necessary clarifications and interpretations of the Contract Documents to the CITY as appropriate to the orderly completion of the CM@R’s work. Such clarifications and DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 628 Neighborhood 2 &6 Improvements 13 of 17 September 9, 2022 interpretations will be consistent with the intent of the Contract Documents. Field orders authorizing variations from the requirements of the Contract Documents will be made by the CITY. Task 9.6 Change Orders 9.6.1 Recommend change orders to the CITY, as appropriate. 9.6.2 Review and make recommendations related to Change Orders submitted or proposed by the CM@R. Task 9.7 Shop Drawings and Samples Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which the CM@R is required to submit,but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such review and approvals or other action will not extend to means, methods,techniques,equipment choice and usage, sequences, schedules, or procedures of construction or to related safety precautions and programs.Assumes up to one hundred (100)shop drawings. Task 9.8 Substitutes and “or-equal” Evaluate and determine the acceptability of substitute or “or-equal” materials and equipment proposed by the CM@R in accordance with the Contract Documents, but subject to the provisions of applicable standards of state or local government entities. Task 9.9 Inspections and Tests Review certificates of inspections and tests within the ENGINEER’s area of responsibility for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections,tests, or approvals comply with the requirements of the Contract Documents.The ENGINER will be entitled to rely on the results of such tests and facts being certified. The scope of services assumes the pumps and motors will go through a non-witnessed factory test. Attending testing will be considered additional services. Task 9.10 Disagreements between City and Contractor As necessary,the ENGINEER will, with reasonable promptness, render initial written decision on all claims of the CITY and CM@R relating to the acceptability of the CM@R’s work or the interpretation of the requirements of the Contract Documents pertaining to the progress of the CM@R’s work. In rendering such decisions,the ENGINEER will be fair and not show partiality to the CITY or CM@R and will not be liable in connection with any decision rendered in good faith in such capacity. The initial decision of the ENGINEER shall be required as a condition precedent to mediation or litigation of any claim arising prior to the date final payment is due to the CM@R,unless thirty (30)days have passed after a claim has been referred to the ENGINEER with no decision having been rendered. Task 9.11 Final Walkthrough and Punchlist Preparation 9.11.1 Attend final walkthrough with the CM@R and CITY to determine if the completed work of the CM@R is generally in accordance with the Contract Documents. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 629 Neighborhood 2 &6 Improvements 14 of 17 September 9, 2022 a.Limitation of Responsibilities: The ENGINEER will not be responsible for the acts or omissions of any contractor,suppliers, or of any other individual entity performing or furnishing the work.The ENGINEER will not have the authority or responsibility to stop the work of any contractor. 9.11.2 Compile punch list from information gathered during final walkthrough with the CITY and CM@R. Assumptions: It is assumed the construction phase will be for forty-two (42) months.Additional Construction Phase Services will be considered Additional Services. Task 10 Record Drawings Task 10.1 Record Drawings 10.1.1 Obtain and review comments and field changes on the construction plans from the CITY and CM@R. 10.1.2 Prepare record drawings based on comments and field changes.The ENGINEER will not be providing resident engineering services and will not be observing on a full- time basis and will therefore not seal the record drawings. The record drawings will be provided as digital 22”x34”PDF. Task 11 Property Acquisition Services Task 11.1 Property Exhibits 11.1.1 The ENGINEER will prepare up to one-hundred sixty-one (161)property exhibits for use with a right-of-entry letter to be provided by the CITY.Each property exhibit will show the property lines, address,property owner information, and proposed layout of new utility service. 11.1.2 The ENGINEER will incorporate one (1)round of comments on each exhibit provided by the CITY following CITY staff meeting with the property owner. Task 11.2 Temporary Construction Easements 11.2.1 The ENGINEER will prepare a metes and bounds description and sketch showing the location and dimensions for proposed easements.Easement language will either be the unaltered standard language provided by the local jurisdiction, or as agreed to by the Grantor and Grantee and provided complete to the ENGINEER. The CITY will file the documents. The ENGINEER will prepare up to forty (40) temporary construction easement documents. Task 11.3 Property Acquisition Services 11.3.1 ENGINEER will perform the following services for Easement Acquisition Services: 1.ENGINEER’s Real Estate Agent shall provide appraisals for proposed easements on up to forty (40) parcels for the proposed lines. Appraisals will be approved by DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 630 Neighborhood 2 &6 Improvements 15 of 17 September 9, 2022 the City prior to beginning negotiations with property owners. The appraisals will be prepared by State Certified Appraisers in accordance with the Uniform Standards of Professional Appraisal Practice Act (USPAP). The appraisals will be suitable for use in condemnation proceedings, if necessary. 2.Provide property negotiation services for up to forty (40) parcels for the proposed line as follows: a.The offer to purchase the properties will be based on the appraisals as indicated above. The City will establish the value to be used in negotiation and the range of negotiating authority to be given to the right-of-way agent. ENGINEER’s Real Estate Agent will provide the services of qualified right- of-way agents to secure the required easements for the project. The right-of- way agents will provide each property owner a copy of The Texas Landowner Bill of Rights, but will NOT be required to provide negotiation services under the Uniform Relocation and Acquisition Act (Uniform Act). b.ENGINEER’s Real Estate Agent will negotiate on behalf of the City and utilize conveyance documents and other necessary forms as prescribed by the City. ENGINEER’s Real Estate Agent will provide a good faith effort to acquire the rights-of-way through a negotiation process, which will generally consist of three (3) contacts with the property owner, or his authorized representative. A maximum of five (5) total contacts will be provided to reach an agreement with the property owner, or to determine that further negotiations will be non-productive and that eminent domain actions will be necessary to acquire the property.If absentee owners are involved, the negotiations may be conducted via telephone, fax,or by mail. If the schedule for acquisition of the easement or other factors arise, which make it expedient, travel outside the project area to meet with the absentee owners may be desirable. If such events arise, the travel must be specifically authorized by the City. If such travel is authorized, the expenses involved, including the agent’s services, will be considered additional services. c.The initial offer made to the property owner will be based on the value authorized by the City. All counter-offers by the property owner, along with ENGINEER’s Real Estate Agent recommendations will be presented to the City for consideration. The City must establish and recommend such counter offers before ENGINEER’s Real Estate Agent will be authorized to agree to the requested changes. All monetary offers made to the property owners will be within the limits authorized by the City in the various stages of the negotiation. d.After reaching an agreement with the landowner on the consideration and all other terms of the transaction, ENGINEER’s Real Estate Agent will forward to the City a Memorandum of Agreement (M/A) executed by the property owner to be ratified by the City. This M/A sets forth the compensation and any other terms and conditions agreed upon. The City will be responsible for obtaining the City’s ratification and for returning the ratified M/A to ENGINEER’s Real Estate Agent. ENGINEER’s Real Estate Agent will then inform the Title Company that the parcel is ready for closing. 3.ENGINEER’s Real Estate Agent will coordinate contacts with the CITY to deliver any payments to the Title Company prior to closing. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 631 Neighborhood 2 &6 Improvements 16 of 17 September 9, 2022 4.This Scope of Services assumes that costs for Title Commitments, Title Policies and recording fees will be purchased by the City through the assistance of the Real Estate Agent. The amount paid for the Title Policies will not exceed premium amounts set by the Texas Department of Insurance and agreed upon in advance between the City and the Title Company. Any additional Title Company services such as recording fees shall be agreed upon in advance between the City and the Title Company. ENGINEER’s Real Estate Agent will review liens or other exceptions reported in the Title Commitment. ENGINEER will coordinate the location and the effect of any utility easements.ENGINEER will report the results of the Title Commitment to the City, recommending the disposition of the exceptions. The decision whether the reported exceptions are acceptable or must be eliminated will be the responsibility of the City. Any action required to clear title is not included in the Scope of Work for this project, and if required, will be considered Additional Services. 5.ENGINEER’s Real Estate Agent will coordinate and attend all closings at the Title Company. 6.ENGINEER’s Real Estate Agent will confirm that the Title Company records all documents at the Denton County Courthouse after closing. 7.ENGINEER’s Real Estate Agent will confirm that the Title Company forwards copies of all recorded documents to the City. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 632 Neighborhood 2 &6 Improvements 17 of 17 September 9, 2022 ADDITIONAL SERVICES The following additional services are not anticipated as part of this Scope of Services agreement, however, can be provided if deemed necessary during the Project development process.The ENGINEER will not provide the additional services listed below without the written consent and approval of the CITY. Redesign to reflect project scope changes requested by the CITY, CM@R,or TxDOT, required to address changed conditions or change in direction previously approved by the CITY, mandated by changing governmental laws, or necessitated by the CITY’s acceptance of substitutions proposed by the contractor. Additional meetings. Additional construction site visits Additional construction shop drawing and sample review and comment Additional traffic control plan details Preparing additional right-of-way or easement documentation. Construction management and inspection services. Performance of materials or specialty testing services. Services necessary due to default of the CM@R. Design of franchise utility relocations. Traffic signal design. Illumination design beyond what is listed in the above scope of services. Design of CITY utility relocations beyond what is listed in the scope of services. Architectural or 3D renderings. Services related to damages caused by fire, flood,earthquake or other acts of God. Services related to warranty claims, enforcement, and inspection after final completion. Services related to survey construction staking. Services to support,prepare, document,bring,defend, or assist in litigation undertaken or defended by the CITY. Performance of miscellaneous and supplemental services related to the project as requested by the CITY. Any services not listed above. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 633 Neighborhood 2 & 6 Improvements 1 of 3 September 9, 2022 ATTACHMENT "B" NEIGHBORHOOD 2 & 6 IMPROVEMENTS Compensation Total compensation for the ENGINEER completed under the terms of this agreement shall be a total not-to-exceed $5,726,000 for all services including reimbursable expenses. The CITY shall compensate the ENGINEER as follows: BASIC SERVICES Lump Sum The ENGINEER will perform the services in Tasks 4-8.2 and 11.1 for the total lump sum fee below. Individual task amounts are informational only. All permitting, application, and similar project fees will be paid directly by the CITY. Task 4 –Data Collection o Task 4.1 –Data Collection and Analysis $239,300 o Task 4.2 –Topographic Survey $232,600 o Task 4.2 –Utility Service Relocation Survey $49,800 o Task 4.3 –Geotechnical Analysis $170,500 Task 5 –Roadway Design $1,905,400 Task 6 –Sidewalk Design $39,800 Task 7 –Utility Design o Task 7.1 –Water Design $575,300 o Task 7.2 –Sanitary Sewer $309,800 o Task 7.3 –Utility Service Relocations $32,200 Task 8.2 –Illumination Study $123,000 Task 11.1 –Property Exhibits $63,000 Lump Sum Total $3,740,700 Lump sum fees will be invoiced monthly based upon the overall percentage of services performed. Individual task amounts are provided for budgeting purposes only.The ENGINEER reserves the right to reallocate amounts among tasks as necessary. Hourly Not to Exceed The ENGINEER will perform the services in Tasks 1-3,4.4,6.2,and 8.3-12 on a labor fee plus expense basis with the maximum labor fee shown below. Task 1 –Project Management $169,400 Task 2 –Coordination Meetings $134,400 Task 3 –Public Involvement $34,900 Task 4 –Data Collection o Task 4.4.1 –SUE Level B $512,200 o Task 4.4.2 –SUE Level A $27,500 Task 6.2 –RAS Specialist $6,600 DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 634 Neighborhood 2 & 6 Improvements 2 of 3 September 9, 2022 Task 8.3 –Illumination Design $361,500 Task 9 –Construction Phase Services $450,200 Task 10 –Record Drawings $21,300 Task 11.2 –Temporary Construction Easements $33,000 Task 11.3 –Property Acquisition Services $217,800 Task 12 –Reimbursable Expenses $16,500 Hourly Not to Exceed Sum Total $1,985,300 The ENGINEER will not exceed the total maximum labor fee shown without authorization from the CITY. Individual task amounts are provided for budgeting purposes only.The ENGINEER reserves the right to reallocate amounts among tasks as necessary.Labor fee will be billed on an hourly basis according to our then-current rates. As to these tasks, direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.10 times cost. A percentage of labor fee will be added to each invoice to cover certain other expenses as to these tasks such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Administrative time related to the project may be billed hourly. All permitting, application, and similar project fees will be paid directly by the CITY. Payment will be due within 30 days of your receipt of the invoice and should include the invoice number and Kimley-Horn project number. EXTRA SERVICES Any services not specifically provided for in the above scope and authorized by the CITY, will be billed as additional services,and performed at our then current hourly rates. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 635 Neighborhood 2 & 6 Improvements 3 of 3 September 9, 2022 STANDARD RATE SCHEDULE The ENGINEER’s hourly rate schedule is as shown below: Analyst $150 -$230 Professional $200 -$275 Senior Professional I $240 -$330 Senior Professional II $295 -$350 Senior Technical Support $150 -$260 Support Staff $105 -$135 Technical Support $95 -$140 These rates are effective through December 31, 2022, after which they are subject to periodic adjustment. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 636 City of Denton, Texas Page 1 of 1 ATTACHMENT “C” CHANGES AND AMENDMENTS TO STANDARD AGREEMENT Design Services for NEIGHBORHOOD 2 & 6 IMPROVEMENTS No modifications to the Standard Agreement are necessary for this project. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 637 City of Denton, Texas Page 1 of 1 ATTACHMENT “D” PROJECT SCHEDULE Design Services for NEIGHBORHOOD 2 & 6 IMPROVEMENTS The ENGINEER will coordinate with the CITY and CM@R to develop an acceptable schedule during the project kick-off meeting. DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 638 University ofNorth Texas NORTH TEXASI-35E C H E S T N U T SUNSET WESTWAY PARKWAY PANHANDLE EGAN MULBERRY CONGRESS SYCAMORE CRESCENT UNDERWOOD CARROLLBRADLEYCOLLINS EAGLEAILEENSCRIPTURE EMERY CORDELL MCKINNEY I- 3 5 W R a mp GOBERHICKORY OAK COITAVE AAMARILLOPRI VATE FANNIN CEDARKENDOLPHMCCORMICKMOUNTSHIGHLANDJAGOE LOCUSTGEORGETOWNI-35 AVE BMALONEHINKLEI-35WCORNELLHIGHLAND PARKWISTERIAOAKWOOD MAPLE ELMALICELOVELLGR EEN L E E PIERCEUNIVERSITY BERNARDBOLIVARLINDSEYAVE DWILSHIRE FULTONAVE HAVE GMARIETTAFOUTSBROADWAY I-35E SERVICE RD ANNAPONDERWELCHTHIRD UNIONPINERFRYGREGG MILLERFIRST MARGIE GR ACETEMPLE AMHERST CENTRALAVE FPEAKCROW BEATTYSENA OLDBONNIEBRAECARLTON LOUISE INNERCAMPUS CHARLOTTE STELLA KNIGHTTHOMASSTANLEYECTORHILLCRESTSTROUDPUBLIC ALLEYGAYAVE CTREMONT LINDEN PEARL ANDERSON HAYNES MYRTLEIOOFMICHIAL I- 3 5 R a mp A IR P O R T NEFFNORMANWHIPPOORWILL BRYANFORT WORTHCLEVELANDPRAIRIE N I-35E Ramp MEADOWBELLEMEADNORMALBONNIE BRAECOLLIERWESTCHESTER HOUSTON DENTONI-35 SERVICE RD I-35W ServiceATTACHMENT ECITY OF DENTON CMARPHASE 2 PROJECT AREAS NEIGHBORHOOD 2 & 6 1 in = 300 feet Date: 8/9/2022 Background Data RoadRailroad """""""""""""""""""""""""""""""""FEMA Floodplain Existing Infrastructure Water LinesSewer Gravity Main I 0 0.5 10.25 Miles Proposed Infrastructure Proposed RoadwayProposed WaterProposed Wastewater asdf R ACMP N OAT C LI EHED RA RARAT AMEVEISTERRelocations Proposed Utility Service Relocations PROJECT AREAS BORHOOD 2 & 6 DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 639 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E Kimley-Horn and Associates, Inc. Attachment CIQ N/A 9/29/2022 X 640 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 687B8396-2F70-42DE-AA41-F6031A93195E 641 Certificate Of Completion Envelope Id: 687B83962F7042DEAA41F6031A93195E Status: Sent Subject: Please DocuSign: City Council Contract 7599-010 CMAR Neighborhood 2 & 6 Design Source Envelope: Document Pages: 44 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 9/27/2022 11:20:00 AM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 9/27/2022 11:30:03 AM Viewed: 9/27/2022 11:36:36 AM Signed: 9/27/2022 11:40:01 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/27/2022 11:40:06 AM Viewed: 9/28/2022 9:16:14 AM Signed: 9/28/2022 9:16:44 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 47.24.6.135 Sent: 9/28/2022 9:16:50 AM Viewed: 9/29/2022 1:12:48 PM Signed: 9/29/2022 1:14:41 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Scott Arnold Scott.arnold@kimley-horn.com Vice President Kimley-Horn and Associates, Inc. Security Level: Email, Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 134.238.171.64 Sent: 9/29/2022 1:14:46 PM Viewed: 9/29/2022 1:18:30 PM Signed: 9/29/2022 1:18:54 PM Electronic Record and Signature Disclosure: Accepted: 3/27/2020 10:55:11 AM ID: a1f38400-e5cc-4b57-8548-4dd7e031355d 642 Signer Events Signature Timestamp Rebecca Diviney Rebecca.Diviney@cityofdenton.com Director of Capital Projects/City Engineer Capital Projects/Engineering Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/29/2022 1:19:00 PM Viewed: 9/30/2022 9:26:05 AM Signed: 9/30/2022 9:26:28 AM Electronic Record and Signature Disclosure: Accepted: 9/30/2022 9:26:05 AM ID: 8e4bd9df-889b-4b5c-bdb7-d4134aff837f Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 9/30/2022 9:26:33 AM Viewed: 9/30/2022 9:43:08 AM Signed: 9/30/2022 9:52:41 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 9:52:49 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/2/2022 12:04:40 PM ID: b38026e7-94f8-4631-b88c-70cf55b870c2 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp 643 Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/27/2022 11:40:06 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 9:52:47 AM Viewed: 10/3/2022 2:13:57 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Colton Hermes colton.hermes@kimley-horn.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 5/4/2022 12:03:39 PM ID: 6230fab2-675b-4382-ac5d-993404b1ed7e Seth Garcia Seth.Garcia@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 9/12/2022 2:43:50 PM ID: c557219a-c949-464a-a980-29b49154ad04 Cheyenne Defee cheyenne.defee@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 9/27/2022 11:30:03 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure 644 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Scott Arnold, Rebecca Diviney, Rosa Rios, Colton Hermes, Seth Garcia 645 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2195,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a Construction Manager at Risk contract with Sundt Construction,Inc.,for pre- construction services of Neighborhood 2 &6 Improvements for the Capital Projects Department;providing for the expenditure of funds therefor;and providing an effective date (RFP 8055 -awarded to Sundt Construction, Inc., in the not-to-exceed amount of $452,147.00). The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™648 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a Construction Manager at Risk contract with Sundt Construction, Inc., for pre-construction services of Neighborhood 2 & 6 Improvements for the Capital Projects Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 8055 – awarded to Sundt Construction, Inc., in the not-to-exceed amount of $452,147.00). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND Neighborhoods 2 & 6 contain 118 street segments associated with the 2019 Street Reconstruction Bond Program in the University of North Texas area and surrounding residential neighborhoods. The scope of the project includes 56,600 linear feet of roadway reconstruction, 30,700 linear feet of water main replacement, 28,400 linear feet of wastewater main replacement, sidewalk enhancements, and various lighting improvements. Capital Projects is focusing on a holistic neighborhood approach to minimize construction impacts and enhance coordination during the delivery of the 2019 Bond Program. This project is being delivered as the second Construction Manager at Risk (CM@R) project in the City of Denton (City) for horizontal construction. This delivery method leans heavily on collaboration among the City, the design engineer, and the CM@R during the design process to allow for the best schedule coordination, cost modeling, and community engagement. To achieve the goal of completing the 2019 Street Reconstruction Bond Program within a 6-year time frame, City staff evaluated the use of alternative delivery methods including Construction Manager at Risk (CM@R) to make project delivery more efficient. The City contracted with Freese and Nichols, Inc. to help develop and adopt new contract documents and receive coaching to successfully execute a Construction Manager at Risk project. This methodology works on the basis of collaboration between the City, design engineer, and construction manager from the initiation of project design through construction. Although the work by law is required to be bid, cost models are tracked through the design phase (open book) to establish a guaranteed maximum price for the project. The construction manager also provides and tracks a construction management plan and schedule throughout design development to help facilitate a seamless transition between design phase services and construction. By utilizing this methodology, the staff’s goal of enhanced community engagement, construction sequencing, and overall cost value will be prioritized. The purpose of this contract is for Sundt Construction, Inc. to provide design phase services including input on the constructability of the design as it is developed in collaboration with the City of Denton, and the proposed design consultant Kimley-Horn and Associates, Inc. After the design is finalized, staff will request City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 649 the Public Utilities Board and City Council to approve a subsequent contract with Sundt Construction, Inc. for construction phase services of Neighborhood 2 & 6. Request for Proposals was sent to 527 prospective suppliers of this item. In addition, specifications were placed on the Procurement website for prospective suppliers to download and advertised in the local newspaper. Three (3) proposals were received, references were checked, and proposals were evaluated based upon published criteria including cost proposal and technical proposal/interview. Based upon this evaluation, Sundt Construction, Inc. was ranked the highest and determined to be the best value for the City. NIGP Code Used for Solicitation: 913 - (Service Only) - Construction Services, Heavy (Incl. Maintenance and Repair Services) Notifications sent for Solicitation sent in IonWave: 527 Number of Suppliers that viewed Solicitation in IonWave: 11 HUB-Historically Underutilized Business Invitations sent out: 44 SBE-Small Business Enterprise Invitations sent out: 178 Responses from Solicitation: 3 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Sundt Construction, Inc., for pre-construction services for Neighborhood 2 & 6 Improvements for the Capital Projects Department, in the not-to-exceed amount of $452,147. PRINCIPAL PLACE OF BUSINESS Sundt Construction, Inc. Irving, TX ESTIMATED SCHEDULE OF PROJECT Neighborhoods 2 & 6 projects will be started upon approval of the design and CM@R contracts with a projected construction completion date of Q4 2026. FISCAL INFORMATION This contract will be funded from 2019 Street Reconstruction bond account 350530473 Requisition #157109 has been entered into the Purchasing software system in the amount of $452,147. The budgeted amount for this item is $452,147. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Pricing Evaluation Exhibit 3: Ordinance and Contract Exhibit 4: Presentation 650 Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Seth Garcia, 940-349-8938. Legal point of contact: Marcella Lunn at 940-349-8333. 651 Sundt Construction, Inc. McCarthy Building Companies, Inc. Flatiron Constructors Inc. Irving, TX Dallas, TX San Marcos, TX Line #Description 1 2 Total CMAR Pre-Construction Fee $452,147.00 $424,101.00 $588,954.00 Item #Scoring Criteria Sundt Construction, Inc. McCarthy Building Companies, Inc. Flatiron Constructors Inc. 1 Qualification and Experience of the Firm - 25%23.00 22.00 15.00 2 Project Specific Delivery Approach - 15%13.20 12.00 9.00 3 Pre-Construction Phase Services Approach - 15%12.60 13.80 10.20 4 Community Engagement - 15%15.00 12.00 7.80 5 Quality Assurance and Quality Control - 10%9.20 8.00 7.60 6 CMAR Preconstruction Fee - 5%4.69 5.00 3.60 7 CMAR Construction Fee - 10%10.00 8.82 7.50 8 CMAR General Conditions Cost - 5%5.00 3.06 1.82 92.69 84.68 62.52 Evaluation Total Score: CMAR COST PROPOSAL Exhibit 2 RFP 8055 - Pricing Evaluation for CMAR Neighborhoods 2 & 6 Design Respondent's Business Name: Principal Place of Business (City and State): 652 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSTRUCTION MANAGER AT RISK CONTRACT WITH SUNDT CONSTRUCTION, INC., FOR PRE- CONSTRUCTION SERVICES OF NEIGHBORHOOD 2 & 6 IMPROVEMENTS FOR THE CAPITAL PROJECTS DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 8055 AWARDED TO SUNDT CONSTRUCTION, INC., IN THE NOT-TO-EXCEED AMOUNT OF $452,147.00). WHEREAS, the City has solicited, received, and evaluated competitive proposals for pre- construction services of Neighborhood 2 & 6 Improvements for the Capital Projects Department; and WHEREAS, the City Manager, or a designated employee, has received, reviewed, and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, this procurement was undertaken as part of the Ci function, [Street construction and design]; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies, office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 8055 Sundt Construction, Inc. $452,147.00 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. 653 SECTION 3. That shouldthe City and person submitting approved and accepted items wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager, or their designated representative, is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ ______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR 654 ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 655 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A Not Applicable RFP 8055 Cori Power CMAR for Neighborhood 2 & 6 Improvements 656 CITY OF DENTON, TEXAS CONSTRUCTION MANAGER AT RISK FOR NEIGHBORHOD 2 & 6 CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES CONTRACT NO. 8055 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 657 TABLE OF CONTENTS ARTICLE PAGE RECITALS .................................................................................................................................................... 5 AGREEMENT ............................................................................................................................................... 5 ARTICLE 1 – TERMS AND DEFINITIONS .................................................................................................. 5 ARTICLE 2 – BASIC DESIGN PHASE SERVICES ..................................................................................... 9 2.1 GENERAL ......................................................................................................................................... 9 2.2 CONSTRUCTION MANAGEMENT PLAN ........................................................................................ 9 2.3 PROJECT SCHEDULE ..................................................................................................................... 9 2.4 DESIGN DOCUMENT REVIEWS ................................................................................................... 10 2.5 COST ESTIMATES ......................................................................................................................... 11 2.6 GUARANTEED MAXIMUM PRICE (GMP) PROPOSALS .............................................................. 11 2.7 MAJOR SUBCONTRACTOR AND MAJOR SUPPLIER SELECTIONS ......................................... 13 ARTICLE 3 – PERIOD OF SERVICES ...................................................................................................... 14 ARTICLE 4 – CONTRACT AMOUNT AND PAYMENTS .......................................................................... 14 4.1 CONTRACT AMOUNT .................................................................................................................... 14 4.2 PAYMENTS ..................................................................................................................................... 14 ARTICLE 5 - CITY'S RESPONSIBILITIES ................................................................................................ 15 ARTICLE 6 – CONTRACT CONDITIONS .................................................................................................. 15 6.1 PROJECT DOCUMENTS AND COPYRIGHTS .............................................................................. 15 6.2 COMPLETENESS AND ACCURACY OF CM@RISK'S WORK ..................................................... 16 6.3 ALTERATION IN CHARACTER OF WORK ................................................................................... 16 6.4 DATA CONFIDENTIALITY .............................................................................................................. 16 6.5 PROJECT STAFFING ..................................................................................................................... 17 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 658 6.6 INDEPENDENT CONTRACTOR .................................................................................................... 17 6.7 SUBCONSULTANTS ...................................................................................................................... 17 6.8 TERMINATION................................................................................................................................ 17 6.9 DISPUTES ...................................................................................................................................... 17 6.10 WITHHOLDING PAYMENT ............................................................................................................ 18 6.11 RECORDS/AUDIT .......................................................................................................................... 18 6.12 INDEMNIFICATION ........................................................................................................................ 18 6.13 NOTICES ........................................................................................................................................ 18 6.14 EQUAL OPPORTUNITY/AFFIRMATIVE ACTION ......................................................................... 19 6.15 COMPLIANCE WITH FEDERAL LAWS ......................................................................................... 19 6.16 CONFLICT OF INTEREST ............................................................................................................. 19 6.17 CONTRACTOR'S LICENSE ........................................................................................................... 19 6.18 SUCCESSORS AND ASSIGNS ..................................................................................................... 19 6.19 FORCE MAJEURE ......................................................................................................................... 19 6.20 COVENANT AGAINST CONTINGENT FEES ................................................................................ 20 6.21 NON-WAIVER PROVISION ............................................................................................................ 20 6.22 JURISDICTION ............................................................................................................................... 20 6.23 SURVIVAL ....................................................................................................................................... 20 6.24 MODIFICATION .............................................................................................................................. 20 6.25 SEVERABILITY ............................................................................................................................... 20 6.26 INTEGRATION ................................................................................................................................ 20 6.27 TIME IS OF THE ESSENCE ........................................................................................................... 20 6.28 THIRD PARTY BENEFICIARY ....................................................................................................... 20 6.29 COOPERATION AND FURTHER DOCUMENTATION .................................................................. 20 6.30 CONFLICT IN LANGUAGE ............................................................................................................. 21 6.31 CITY'S RIGHT OF CANCELLATION .............................................................................................. 21 6.32 CONFIDENTIALITY OF PLANS & SPECIFICATIONS ................................................................... 21 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 659 ARTICLE 7 – INSURANCE REQUIREMENTS .......................................................................................... 21 7.1 MINIMUM SCOPE AND LIMITS OF INSURANCE ......................................................................... 21 7.2 ADDITIONAL INSURANCE REQUIREMENTS .............................................................................. 22 7.3 SUBCONSULTANT INSURANCE .................................................................................................. 22 7.4 NOTICE OF CANCELLATION ........................................................................................................ 22 7.5 ACCEPTABILITY OF INSURERS .................................................................................................. 22 7.6 VERIFICATION OF COVERAGE ................................................................................................... 22 7.7 APPROVAL ..................................................................................................................................... 22 EXHIBIT A – PROJECT DESCRIPTION ...................................................................... 24 EXHIBIT B - HOURLY RATE SCHEDULE ................................................................... 26 EXHIBIT C - SUBMITTAL REQUIREMENTS FOR THE GMP ..................................... 27 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 660 CONSTRUCTION MANAGER AT RISK FOR NEIGHBORHOD 2 & 6 CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES PROJECT NO. 220018-1 CONTRACT NO. 8055 THIS CONTRACT, made and entered into this by and between City of Denton, Texas, hereinafter designated the “CITY” and Sundt Construction, Inc., hereinafter designated the "CONSTRUCTION MANAGER AT RISK" or “CM@Risk .” RECITALS A. The City Manager of the City of Denton, Texas, or their designee, is authorized and empowered by provisions of the City Charter to execute contracts for professional services and construction services. B. The City intends to construct Neighborhood 2 & 6, as described in Exhibit A attached, hereinafter referred to as the “Project”. C. To undertake the design of said Project the City has entered into a contract with FREESE AND NICHOLS, INC. hereinafter referred to as the “Design Professional.” D. The CM@Risk has represented to the City the ability to provide design phase services and to construct the Project. E. Based on this representation, the City intends to enter into a contract with the CM@Risk for the design phase services identified in this contract. At the end of the design phase, at the City’s discretion, the City may enter into a separate construction contract with the CM@Risk for construction phase services. AGREEMENT NOW THEREFORE, for and in consideration of the mutual covenants and considerations hereinafter contained, it is agreed by and between the City and the CM@Risk as follows: ARTICLE 1 – TERMS AND DEFINITIONS Addenda - Written or graphic instruments issued prior to the submittal of the GMP Proposal(s), which clarify, correct or change the GMP Proposal(s) requirements. Agreement (Contract) – This written document signed by the City and CM@Risk covering the design phase of the Project, and including other documents itemized and referenced in or attached to and made part of this Contract. Alternate Systems Evaluations – Alternatives for design, means and methods or other scope considerations that are evaluated using value engineering principles and have the potential to reduce construction costs while still delivering a quality and functional Project that meets City requirements. Change Order (Amendment) - A written instrument issued after execution of the Contract Documents signed by the City and CM@Risk, stating their agreement upon all of the following: the addition, deletion or revision in the scope of services or Deliverables; the amount of the adjustment to the Contract Amount; the extent of the adjustment to the Contract Time; or modifications of other contract terms. City (Owner) - The City of Denton, a municipal corporation, with whom CM@Risk has entered into this Contract and for whom the services are to be provided pursuant to said Contract. Regulatory activities handled by the City of Denton Development Services, Fire and Planning Departments or any other City department are not subject to the responsibilities of the City under this Agreement. City’s Designated Project Manager – The City of Denton representative who is designated as project manager for the Project. Construction Contract Time(s) - The number of days or the dates related to the construction phase that as stated in Construction Documents applies to achievement of Substantial Completion of the Work. Construction Documents – The plans, specifications and drawings prepared by the Design Professional after correcting for permit review requirements. Construction Fee – The CM@Risk’s administrative costs, home office overhead, and profit, whether at the CM@Risk’s principal or branch offices. Construction Manager at Risk (CM@Risk) - The firm, corporation, or other approved legal entity with whom the City has entered into this Contract to provide services as detailed in this Contract. Construction Management Plan – Formal documentation prepared and maintained by the CM@Risk describing the sequence and DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 661 duration of the activities to accomplish the Work within the Contract Time. Contingency, CM@Risk’s - A fund to cover cost growth during the Project used at the discretion of the CM@Risk usually for costs that result from Project circumstances. The amount of the CM@Risk’s Contingency will be negotiated as a separate line item in each GMP package. Use and management of the CM@Risk’s Contingency is described in Section 2.6. Contingency, Owner’s – A fund to cover cost growth during the Project used at the discretion of the City usually for costs that result from City directed changes or unforeseen site conditions. The amount of the Owner’s Contingency will be set by the City and will be in addition to the project costs included in the CM@Risk’s GMP packages. Use and management of the Owner’s Contingency is described in Section 2.6. Contract Amount - The cost for services for this Contract as identified in Article 4. Contract Documents - means the following items and documents in descending order of precedence executed by the City and the CM@Risk: (i) all written modifications, amendments and Change Orders; (ii) this Agreement, including all exhibits and attachments; (iii) Construction Documents; (iv) GMP Plans and Specifications. Contract Time(s) - The number of days or the dates stated in this Agreement to: (i) achieve Milestones, if any; (ii) achieve Substantial Completion; and (iii) complete the Work so that it is ready for final payment as evidenced by Engineer’s written recommendation of final payment. Cost of the Work - The direct costs necessarily incurred by the CM@Risk in the proper performance of the Work. The Cost of the Work shall include direct labor costs, subcontract costs, costs of materials and equipment incorporated in the completed construction, costs of other materials and equipment, building permit fees (if not paid for by City), materials testing, and related items. The Cost of the Work shall not include the CM@Risk’s Construction Fee. Critical Path Schedule - The sequence of activities from the start of the Work to the Substantial Completion of the Project. Any delay in the completion of these activities will extend the Substantial Completion date. Day - Calendar day unless otherwise specifically noted in the Contract Documents. Deliverables – The work products prepared by the CM@Risk in performing the scope of work described in this Contract. Some of the major deliverables to be prepared and provided by the CM@Risk during the design phase may include but are not limited to: Construction Management Plan, Project Schedule, Schedule of Values, alternative system evaluations, procurement strategies and plans, cost estimates, construction market surveys, cash flow projections, GMP Proposals, Subcontractor procurement plan, Statement of Proposed MBE/WBE Utilization, Subcontractor agreements, Subcontractor bid packages, Supplier agreements, and others as indicated in this Contract or required by the Project Team. Design Professional - The qualified, licensed person, firm or corporation who furnishes design and/or construction administration services required for the Project. Drawings (Plans) – Documents, which visually represent the scope, extent and character of the Work to be furnished and performed by the CM@Risk during the construction phase and which have been prepared or approved by the Design Professional and the City. Includes Drawings that have reached a sufficient stage of completion and released by the Design Professional solely for the purposes of review and/or use in performing constructability or bidability reviews and in preparing cost estimates (e.g. conceptual design Drawings, preliminary design Drawings, detailed design Drawings at 30%, 60%, 90% or 100% or schematic, design development, construction documents), but “not for construction”. Shop Drawings are not Drawings as so defined. Engineer —The qualified, licensed person, firm or corporation who furnishes engineering services required for the Project. Float - The number of Days by which an activity can be delayed without lengthening the Critical Path and extending the Substantial Completion date. General Conditions Costs – Includes, but is not limited to the following types of costs for the CM@Risk during the construction phase: payroll costs for project manager or construction manager for Work conducted at the site; payroll costs for the superintendent and full-time general foremen; payroll costs for other management personnel resident and working on the site; workers not included as direct labor costs engaged in support (e.g. loading/unloading, clean-up, etc.); administrative office personnel; costs of offices and temporary facilities including office materials, office supplies, office equipment, minor expenses; utilities, fuel, sanitary facilities and telephone services at the site; costs of liability insurance premiums not included in labor burdens for direct labor costs; costs of bond premiums; costs of consultants not in the direct employ of the CM@Risk or Subcontractors; and fees for licenses. The General Conditions Costs shall be included in the Cost of the Work. Guaranteed Maximum Price (GMP) – The sum of the maximum Cost of the Work including the CM@Risk’s Construction Fee, General Conditions Costs, sales tax, and CM@Risk Contingency. GMP Plans and Specifications – The three sets of plans and specifications provided pursuant to paragraph 2.6.5 upon which the Guaranteed Maximum Price Proposal is based. Guaranteed Maximum Price (GMP) Proposal - The offer or proposal of the CM@Risk submitted on the prescribed form setting DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 662 forth the GMP prices for the entire Work or portions of the Work to be performed during the construction phase. The GMP Proposal(s) are to be developed pursuant to Article 2 of this Contract. Laws and Regulations - Any and all applicable laws, rules, regulations, ordinances, codes and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction. Milestones - A principal event in the performance of the Work that the Contract requires CM@Risk to achieve by an intermediate completion date, or by a time prior to Substantial Completion of all the Work. Notice of Intent to Award—The written notice by City to a respondent to the City’s solicitation of the Project of City’s intent to accept a certain respondent’s proposal. Notice to Proceed (NTP) Letter - A written notice given by City to the CM@Risk fixing the date on which the CM@Risk will start to perform the CM@Risk’s obligations under this Contract. Payment Request - The form that is accepted by the City and used by the CM@Risk in requesting progress payments or final payment and which will include such supporting documentation as is required by the Contract Documents and or the City. Project - The works to be completed in the execution of this Contract as described in the Recitals above and Exhibit “A” attached. Project Budget - The amounted budgeted by the City for the Project and the Work. Project Schedule - A schedule, prepared and maintained by CM@Risk, describing the sequence and duration of the activities comprising the CM@Risk’s plan to accomplish the Work within the Contract Times. Project Team – Design phase services team consisting of the Design Professional, CM@Risk, City’s Project Manager, City’s Client Department representatives and other stakeholders who are responsible for making decisions regarding the Project. Schedule of Values (SOV) – Document specified in the construction phase Contract, which divides the Contract Price into pay items, such that the sum of all pay items equals the Contract Price for the construction phase Work, or for any portion of the Work having a separate specified Contract Price. The SOV may or may not be output from the Project Schedule depending on if the Project Schedule is cost-loaded or not. Shop Drawings - All drawings, diagrams, schedules, and other data specifically prepared for the Work by the CM@Risk or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. Site – The land or premises on which the Project is located. Specifications - The part(s) of the Contract Documents for the construction phase consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Subconsultant - A person, firm or corporation having a contract with the CM@Risk to furnish services required as its independent professional associate or consultant with respect to the Project. Subcontractor - An individual or firm having a direct contract with the CM@Risk or any other individual or firm having a contract with the aforesaid contractors at any tier, who undertakes to perform a part of the design phase services or construction phase Work at the site for which the CM@Risk is responsible. Subcontractors will be selected through the Subcontractor bid process described in paragraph 2.7 of this Contract. Sub-subcontractor or -consultant – An individual or firm having a direct contract with any Subcontractor or any other individual firm having a contract with aforesaid contractors at any tier, who undertakes to perform a part of the design phase services or construction phase Work at the site for which the CM@Risk is responsible or furnishes services required as its independent profession associate or consultant with respect to the Project, as applicable. Substantial Completion - When the Work, or an agreed upon portion of the Work, is sufficiently complete so that City can occupy and use the Project or a portion thereof for its intended purposes. This may include, but is not limited to: (i) approval by City Fire Marshall and local authorities (Certificate of Occupancy); (ii) Elevator Permit; (iii) all systems in place, functional, and displayed to the City or its representative; (iv) all materials and equipment installed; (v) all systems reviewed and accepted by the City; (vi) draft O&M manuals and record documents reviewed and accepted by the City; (vii) City operation and maintenance training complete; (viii) HVAC test and balance completed (Provide minimum 30 days prior to projected substantial completion); (ix) landscaping and site work; and (x) final cleaning. The conditions of Substantial Completion that do not apply to a specific GMP will be listed in the Notice to Proceed Letter pursuant to the Construction Phase contract. Supplier - A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with CM@Risk or with any Subcontractor to furnish materials or equipment to be incorporated in the construction phase Work by CM@Risk or any Subcontractor. Work - The entire completed construction or the various separately identifiable parts thereof, required to be furnished during the DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 663 construction phase. Work includes and is the result of performing or furnishing labor, services and furnishing and incorporating materials, resources and equipment into the construction, and performing or furnishing services and documents as required by the Contract Documents for the construction phase. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 664 ARTICLE 2 – BASIC DESIGN PHASE SERVICES 2.1 GENERAL 2.1.1 The CM@Risk, to further the interests of the City, will perform the services required by, and in accordance with this Contract, to the satisfaction of the City’s Designated Project Manager, exercising the degree of care, skill and judgment a professional construction manager performing similar services in Denton, Texas would exercise at such time, under similar conditions. The CM@Risk will, at all times, perform the required services consistent with sound and generally accepted construction management and construction contracting practice. The services being provided under this Contract will not alter any real property owned by the City. 2.1.2 Program Evaluation: As a participating member of the Project Team, the CM@Risk will provide to the City and Design Professional a written evaluation of the Project and Project Budget, with recommendations as to the appropriateness of each. 2.1.3 Project Meetings: The CM@Risk will attend Project Team meetings which may include, but are not limited to, regular Project management meetings, Project workshops, special Project meetings, construction document rolling reviews and partnering sessions. 2.1.4 The CM@Risk will provide design phase services described herein, in a proactive manner and consistent with the intent of the most current Drawings and Specifications. The CM@Risk will promptly notify the City in writing whenever the CM@Risk determines that any Drawings or Specifications are inappropriate for the Project and/or cause changes in the scope of Work requiring an adjustment in the cost estimate, Project Schedule, GMP Proposals and/or in the Contract Time for the Work, to the extent such are established. 2.1.5 The CM@Risk, when requested by the City, will attend, make presentations, and participate as may be appropriate in public agency and or community meetings, germane to the Project. The CM@Risk will provide drawings, schedule diagrams, budget charts and other materials describing the Project, when their use is required or apropos in any such public agency meetings. 2.2 CONSTRUCTION MANAGEMENT PLAN 2.2.1 The CM@Risk will prepare a Construction Management Plan (CMP), which may include the CM@Risk’s professional opinions concerning: (a) Project Milestone dates and the Project Schedule, including the broad sequencing of the design and construction of the Project, (b) investigations, if any, to be undertaken to ascertain subsurface conditions and physical conditions of existing surface and subsurface facilities and underground utilities, (c) alternate strategies for fast- tracking and/or phasing the construction, (d) the number of separate subagreements to be awarded to Subcontractors and Suppliers for the Project construction, (e) permitting strategy, (f) safety and training programs, (g) construction quality control, (h) a commissioning program, (i) the cost estimate and basis of the model, and (j) a matrix summarizing each Project Team member’s responsibilities and roles. 2.2.2 The CM@Risk may add detail to its previous version of the CMP to keep it current throughout the design phase, so that the CMP is ready for implementation at the start of the construction phase. The update/revisions may take into account (a) revisions in Drawings and Specifications; (b) the results of any additional investigatory reports of subsurface conditions, drawings of physical conditions of existing surface and subsurface facilities and documents depicting underground utilities placement and physical condition, whether obtained by the City, Design Professional, or the CM@Risk, (c) unresolved permitting issues, and significant issues, if any, pertaining to the acquisition of land and right of way, (d) the fast- tracking if any of the construction, or other chosen construction delivery methods, (e) the requisite number of separate bidding documents to be advertised, (f) the status of the procurement of long-lead time equipment (if any) and/or materials, and (g) funding issues identified by the City. 2.3 PROJECT SCHEDULE 2.3.1 The fundamental purpose of the “Project Schedule” is to identify, coordinate, and record the tasks and activities to be performed by all of the Project Team members and then for the Project Team to utilize that Deliverable as a basis for managing and monitoring all member’s compliance with the schedule requirements of the Project. Each Project Team member is responsible for its compliance with the Project Schedule requirements. The CM@Risk will, however, develop and maintain the “Project Schedule” on behalf of and to be used by the Project Team based on input from the other Project Team members. The Project Schedule will be consistent with the most recent revised/updated CMP. The Project Schedule will use the Critical Path Method (CPM) technique, unless required otherwise, in writing by the City. The CM@Risk will use scheduling software to develop the Project Schedule that is acceptable to the City. The Project Schedule shall be presented in graphical and tabular reports as agreed upon by the Project Team. If Project phasing as described below is required, the Project Schedule will indicate milestone dates for the phases once determined. 2.3.2. The Project Schedule shall include a Critical Path Method (CPM) diagram schedule that shall show the sequence of activities, the interdependence of each activity and indicate the Critical Path. 2.3.2.1 The CPM diagram schedule shall be in Days and indicate duration, earliest and latest start and finish dates for all activities, and total Float times for all activities except critical activities. The CPM diagram shall be presented in a time scaled DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 665 graphical format for the Project as a whole. 2.3.2.2 The CPM diagram schedule shall indicate all relationships between activities. 2.3.2.3 The activities making up the schedule shall be sufficient detail to assure that adequate planning has been done for proper execution of the Work and such that it provides an appropriate basis for monitoring and evaluating the progress of the Work. 2.3.2.4 The CPM diagram schedule shall be based upon activities, which would coincide with the schedule of values. 2.3.2.5 The CPM diagram schedule shall show all submittals associated with each work activity and the review time for each submittal. 2.3.2.6 The schedule shall show Milestones, including Milestones for City-furnished information, and shall include activities for City-furnished equipment and furniture when those activities are interrelated with the CM@Risk activities. 2.3.2.7 The schedule shall include a critical path activity that reflects anticipated rain delay during the performance of the contract. The duration shall reflect the average climatic range and usual industrial conditions prevailing in the locality of the site. Weather data shall be based on information provided by the National Weather Services or other approved source. 2.3.3 The Project Schedule shall consider the City’s and the tenants’ occupancy requirements showing portions of the Project having occupancy priority, and Contract Time. 2.3.4 Float time shall be as prescribed below: 2.3.4.1 The total Float within the overall schedule, is not for the exclusive use of either the City or the CM@Risk, but is jointly owned by both and is a resource available to and shared by both parties as needed to meet contract milestones and the Project completion date. 2.3.4.2 The CM@Risk shall not sequester shared Float through such strategies as extending activity duration estimates to consume available Float, using preferential logic, or using extensive crew/resource sequencing, etc. Since Float time within the schedule is jointly owned, no time extensions will be granted nor delay damages paid until a delay occurs which extends the Work beyond the Substantial Completion date. 2.3.4.3 Since Float time within the schedule is jointly owned, it is acknowledged that City-caused delays on the Project may be offset by City-caused time savings (i.e., critical path submittals returned in less time than allowed by the contract, approval of substitution requests and credit changes which result in savings of time to the CM@Risk, etc.). In such an event, the CM@Risk shall not be entitled to receive a time extension or delay damages until all City-caused time savings are exceeded, and the Substantial Completion date is also exceeded. 2.3.5 The Project Schedule will be updated and maintained by the CM@Risk throughout the design phase such that it will not require major changes at the start of the construction phase to incorporate the CM@Risk’s plan for the performance of the construction phase Work. The CM@Risk will provide updates and/or revisions to the Project Schedule for use by the Project Team, whenever required, but no less often than at the monthly Project Team meetings. The CM@Risk will include with such submittals a narrative describing its analysis of the progress achieved to-date vs. that planned, any concerns regarding delays or potential delays, and any recommendations regarding mitigating actions. 2.3.6 Project Phasing: If phased construction is deemed appropriate and the City and Design Professional approve, the CM@Risk will review the design and make recommendations regarding the phased issuance of Construction Documents to facilitate phased construction of the Work, with the objective of reducing the Project Schedule and/or Cost of the Work. The CM@Risk will take into consideration such factors as natural and practical lines of work severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, labor and materials availability, and any other factors pertinent to saving time and cost. 2.4 DESIGN DOCUMENT REVIEWS 2.4.1 The CM@Risk will evaluate periodically the availability of labor, materials/equipment, building systems, cost-sensitive aspects of the design; and other factors that may impact the cost estimate, GMP Proposals and/or the Project Schedule. 2.4.2 The CM@Risk will recommend, in conjunction with the Project Team, those additional surface and subsurface investigations that, in its professional opinion, are required to provide the necessary information for the CM@Risk to construct the Project. Before initiating construction operations, the CM@Risk may request additional investigations in their GMP Proposal to improve the adequacy and completeness of the site condition information and data made available with the Construction Documents. 2.4.3 The CM@Risk will meet with the Project Team as required to review designs during their development. The CM@Risk will familiarize itself with the evolving documents through the various design phases. The CM@Risk will proactively advise the Project Team and make recommendations on factors related to construction costs, and concerns pertaining to the feasibility and practicality of any proposed means and methods, selected materials, equipment and building systems, and, labor and DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 666 material availability. The CM@Risk will furthermore maintain a project decision and trend log as design develops and advise the Project Team on proposed site improvements, excavation and foundation considerations, as well as concerns that exist with respect to coordination of the Drawings and Specifications. The CM@Risk will recommend cost effective alternatives. 2.4.4 The CM@Risk will routinely conduct constructability and bidability reviews of the Drawings and Specifications as necessary to satisfy the needs of the Project Team. The reviews will attempt to identify all discrepancies and inconsistencies in the Construction Documents especially those related to clarity, consistency, and coordination of Work of Subcontractors and Suppliers. 2.4.4.1 Constructability Reviews: The CM@Risk will evaluate whether (a) the Drawings and Specifications are configured to enable efficient construction, (b) design elements are standardized, (c) construction efficiency is properly considered in the Drawings and Specifications, (d) module/preassembly design are prepared to facilitate fabrication, transport and installation, (e) the design promotes accessibility of personnel, material and equipment and facilitates construction under adverse weather conditions, (f) sequences of Work required by or inferable from the Drawings and Specifications are practicable, and (g) the design has taken into consideration efficiency issues concerning access and entrance to the site, laydown, and storage of materials, staging of site facilities, construction parking, and other similar pertinent issues. 2.4.4.2 Bidability Reviews: The CM@Risk will check cross-references and complementary Drawings and sections within the Specifications, and in general evaluate whether (a) the Drawings and Specifications are sufficiently clear and detailed to minimize ambiguity and to reduce scope interpretation discrepancies, (b) named materials and equipment are commercially available and are performing well or otherwise, in similar installations, (c) Specifications include alternatives in the event a requirement cannot be met in the field, and (d) in its professional opinion, the Project is likely to be subject to differing site conditions. 2.4.4.3 The results of the reviews will be provided to the City in formal, written reports clearly identifying all discovered discrepancies and inconsistencies in the Drawings and Specifications with notations and recommendations made on the Drawings, Specifications, and other documents. If requested by the City, the CM@Risk will meet with the City and Design Professional to discuss any findings and review reports. 2.4.4.4 The CM@Risk’s reviews will be from a contractor's perspective, and though it will serve to reduce the number of Requests for Information (RFIs) and changes during the construction phase, responsibility for the Drawings and Specifications will remain with the Design Professional and not the CM@Risk. 2.4.5 Notification of Variance or Deficiency: It is the CM@Risk’s responsibility to assist the Design Professional in ascertaining that, in the CM@Risk’s professional opinion, the Construction Documents are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. If the CM@Risk recognizes that portions of the Construction Documents are at variance with applicable laws, statutes, ordinances, building codes, rules and regulations, it will promptly notify the Design Professional and City in writing, describing the apparent variance or deficiency. However, the Design Professional is ultimately responsible for the compliance with those laws, statutes, ordinances, building codes, rules and regulations. 2.4.6 Alternate Systems Evaluations: The Project Team will routinely identify and evaluate using value engineering principles any alternate systems, approaches, design changes that have the potential to reduce Project costs while still delivering a quality and functional product. If the Project Team agrees, the CM@Risk in cooperation with the Design Professional will perform a cost/benefit analysis of the alternatives and submit such in writing to the Project Team. The Project Team will decide which alternatives will be incorporated into the Project. The Design Professional will have full responsibility for the incorporation of the alternatives into the Drawings and Specifications. The CM@Risk will include the cost of the alternatives into the cost estimate and any GMP Proposals. 2.5 COST ESTIMATES 2.5.1 Unless otherwise agreed by both parties, within 14 Days after receipt of the documents for the various phases of design, the CM@Risk shall provide a complete and detailed cost estimate and a written review of the documents. The cost estimate should include all cost categories except Owner’s Contingency included in the GMP Proposal identified in Exhibit “C” attached. The Design Professional and CM@Risk shall reconcile any disagreements on the estimate to arrive at an agreed cost. If no consensus is reached, the City will make the final determination. 2.5.2 If any estimate submitted to the City exceeds previously accepted estimates or the City’s Project Budget, the CM@Risk shall make appropriate recommendations on methods and materials to the City and Design Professional that he believes will bring the project back into the Project Budget. 2.5.3 In between these Milestone estimates, the CM@Risk shall periodically provide a tracking report which identifies the upward or downward movements of costs due to design development, value engineering or scope changes. It shall be the responsibility of the CM@Risk to keep the City and Design Professional informed as to the major trend changes in costs relative to the City’s budget. 2.5.4 If requested by the City, the CM@Risk shall prepare a preliminary “cash flow” projection based upon historical records of similar type projects to assist the City in the financing process. 2.6 GUARANTEED MAXIMUM PRICE (GMP) PROPOSALS DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 667 2.6.1.1 The proposed GMP for the entire Work (or portions thereof) will be presented in a format acceptable to the City (see Exhibit “C” attached). CM@Risk must verify with the City the current Exhibit C requirements and procedures when entering into these services. 2.6.1.2 The City may request a GMP Proposal for all or any portion of the Project and at any time during the design phase. Any GMP Proposals submitted by the CM@Risk will be based on and consistent with the current update/revised cost estimate at the time of the request, the associated estimates for construction costs and include any clarifications or assumptions upon which the GMP Proposal(s) are based. 2.6.2 Guaranteed Maximum Price is comprised of the following not-to-exceed cost reimbursable or lump sum amounts defined below. 2.6.2.1 The Cost of the Work is actual costs and is a not-to-exceed, reimbursable amount. 2.6.2.2 The General Conditions Costs are a firm fixed lump sum amount included as a cost of the work and that will include bonds and insurance premiums based on the full contract price for construction. 2.6.2.3 The Construction Fee is 5.25% of the Cost of the Work. 2.6.2.4 CM@Risk’s Contingency is an amount the CM@Risk may use under the following conditions: (1) at its discretion for increases in the Cost of the Work, or (2) with written approval of the City for increases in General Condition Costs. CM@Risk’s Contingency is assumed to be a direct project cost so will receive all markups at the time of GMP submission. 2.6.2.5 Taxes are deemed to include all sales, use, consumer, and other taxes which are legally enacted when negotiations of the GMP were concluded, whether or not yet effective or merely scheduled to go into effect. Taxes are actual costs and are a not-to-exceed reimbursable amount. 2.6.3 Owner’s Contingency are funds to be used at the discretion of the Owner to cover any increases in Project costs that result from Owner directed changes or unforeseen site conditions. Owner’s Contingency will be added to the GMP amount provided by the CM@Risk, the sum of which will be the full contract price for construction. Markups for Construction Fee and taxes will be applied by the CM@Risk at the time that Owner’s Contingency is used. 2.6.4 GMPs are cumulative except for CM@Risk Contingency. The amount of CM@Risk Contingency for each GMP amendment will be negotiated separately and shall reflect the CM@Risk’s risk from that point in the project forward. 2.6.5 The CM@Risk, in preparing any GMP Proposal, will obtain from the Design Professional, three sets of signed, sealed, and dated plans and specifications (including all addenda). The CM@Risk will prepare its GMP in accordance with the City’s request for GMP Proposal requirements based on the most current completed plans and specifications at that time. The CM@Risk will mark the face of each document of each set upon which its proposed GMP is based. These documents will be identified as the GMP Plans and Specifications. The CM@Risk will send one set of those documents to the City’s Project Manager, keep one set and return the third set to the Design Professional. 2.6.6 An updated/revised Project Schedule will be included with any GMP Proposal(s) that reflects the GMP Plans and Specifications. Any such Project Schedule updates/revisions will continue to comply with the requirements of paragraph 2.3. 2.6.7 GMP savings resulting from a lower actual project cost than anticipated by the CM@Risk remaining at the end of the project will revert to City. 2.6.7.1 GMP Proposal(s) Review and Approval 2.6.7.2 The CM@Risk will meet with the City and Design Professional to review the GMP Proposal(s) and the written statement of its basis. As part of the statement of basis, the CM@Risk shall identify and justify any costs that are significantly different than the latest cost estimate provided by the CM@Risk. In the event the City or Design Professional discovers inconsistencies or inaccuracies in the information presented, the CM@Risk will make adjustments as necessary to the GMP Proposal, its basis or both. 2.6.7.3 The City upon receipt of any GMP proposal from the CM@Risk, may submit the GMP Plans and Specifications to an independent third party or to the Design Professional for review and verification. The third party or Design Professional will develop an independent estimate of the Cost of the Work and review the Project Schedule for the associated scope of the GMP Proposals. 2.6.7.4 If the CM@Risk GMP Proposal is greater than the independent third party or Design Professional’s estimate, the City may require the CM@Risk to reconfirm its GMP Proposal. The CM@Risk will accept the independent third party’s or Design Professional’s estimate for the Cost of Work as part of his GMP or present a report within seven days of a written request to the City identifying, explaining, and substantiating the differences. The CM@Risk may be requested to, or at its own discretion, submit a revised GMP Proposal for consideration by the City. At that time, the City may do one of the following. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 668 (a) Accept the CM@Risk original or revised GMP Proposal, if within the City’s budget, without comment. (b) Accept the CM@Risk original or revised GMP Proposal that exceeds the City’s budget and indicate in writing to the CM@Risk that the Project Budget has been increased to fund the differences. (c) Reject the CM@Risk’s original or revised GMP Proposal because it exceeds the City’s budget, the independent third parties or Design Professional’s estimate, in which event, the City may terminate this Contract and/or elect to not enter into a separate contract with the CM@Risk for the construction phase associated with the scope of Work reflected in the GMP Proposal. 2.6.7.5 If during the review and negotiation of GMP Proposals design changes are required, the City will authorize and cause the Design Professional to revise the Construction Documents to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in the final approved GMP Proposal. Such revised Construction Documents will be furnished to the CM@Risk. The CM@Risk will promptly notify the Design Professional and City in writing if any such revised Construction Documents are inconsistent with the agreed-upon assumptions and clarifications. 2.7 MAJOR SUBCONTRACTOR AND MAJOR SUPPLIER SELECTIONS 2.7.1 The selection of major Subcontractors and major Suppliers may occur prior to submission of a GMP Proposal. Major Subcontractors may be selected based on qualifications or a combination of qualifications and price. Subcontractors shall not be selected based on price alone. Except as noted below, the selection of major Subcontractors/Suppliers is the responsibility of the CM@Risk. In any case, the CM@Risk is solely responsible for the performance of the selected Subcontractors/Suppliers. 2.7.1.1 The CM@Risk will prepare a Subcontractor/Supplier selection plan and submit the plan to the City for approval. This subcontractor selection plan shall identify those subcontractor trades anticipated to be pre-qualified by qualifications and competitive bid in accordance with Section 2.7.2 and subcontractor trades will not be pre-qualified through a formalized qualifications-based selection process (competitively bid only). The subcontractor selection plan must be consistent with the selection requirements included in this Contract and the provisions of Chapter 2269 of the Texas Government Code. 2.7.2 Selection by qualifications and competitive bid - The CM@Risk shall apply the subcontractor selection plan in the evaluation of the qualifications of a Subcontractor(s) or Supplier(s) and provide the City with its process to prequalify prospective subcontractors and suppliers. All Work for major Subconsultants and major Suppliers shall then be competitively bid to the prequalified Subcontractors. Competitive bids may occur prior to or after the GMP Proposal(s). 2.7.2.1 The CM@Risk will develop Subcontractor and Supplier interest, submit the names of a minimum of three qualified Subcontractors or Suppliers for each trade in the Project for approval by the City and solicit bids for the various Work categories. If there are not three qualified Subcontractors/Suppliers available for a specific trade or there are extenuating circumstances warranting such, the CM@Risk may request approval by the City to submit less than three names. Without prior written notice to the City, no change in the recommended Subcontractors/Suppliers will be allowed. 2.7.2.2 If the City objects to any nominated Subcontractor/Supplier or to any recommended self-performed Work bidding opportunities for good reason, the CM@Risk will nominate a substitute Subcontractor/Supplier that is acceptable to the City. 2.7.2.3 The CM@Risk will distribute Drawings and Specifications, and when appropriate, conduct a prebid conference with prospective Subcontractors and Suppliers. 2.7.2.4 If the CM@Risk desires to self-perform certain portions of the Work, it will request to be one of the approved Subcontractor bidders for those specific bid packages. The CM@Risk’s bid will be evaluated in accordance with the process identified below. If events warrant and the City concurs that in order to ensure compliance with the Project Schedule and/or cost, or if a Subcontractor is terminated the CM@Risk may self-perform Work without re-bidding the Work. 2.7.2.5 The CM@Risk shall request the pre-qualified subcontractors to provide a detailed bid for the services requested. The subcontractor bid, provided on the subcontractors’ letterhead, shall contain sufficient information (i.e. unit costs/amounts) to allow an evaluation of the reasonableness of bid costs. The CM@Risk shall receive, open, record and evaluate the bids. The apparent low bidders will be interviewed to determine the responsiveness of their proposals. In evaluating the responsiveness of bid proposals the CM@Risk, in addition to bid price, may consider the following factors: past performance on similar projects, qualifications and experience of personnel assigned, quality management plan, approach or understanding of the Work to be performed, and performance schedule to complete the Work. The final evaluation of Subcontractor/Supplier bids will be done with the City Representative in attendance to observe and witness the process. The CM@Risk will resolve any Subcontractor/Supplier bid withdrawal, protest or disqualification in connection with the award at no increase in the Cost of the Work. 2.7.3 The CM@Risk will be required to prepare two different reports on the subcontracting process. 2.7.3.1 Within fifteen Days after each major Subcontractor/Supplier bid opening process, the CM@Risk will prepare a report for the City’s review and approval identifying the recommended Subcontractors/Supplier for each category of Work. The report will provide (a) the name of the recommended Subcontractor/Supplier and the amount of the Subcontractor/Supplier bid for each subagreement, DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 669 (b) the sum of all recommended Subcontractor/Supplier bids received, (c) a copy of the bids received from each Subcontractor, and (d) trade work and its cost that the CM@Risk intends to self-perform, if any. 2.7.3.2 Upon completion of the Subcontractor/Supplier bidding process, the CM@Risk shall submit a summary report to the City of the entire Subcontractor/Supplier selection process. The report will indicate, by bid process, all Subcontractors/Suppliers contacted to determine interest, the Subcontractors/Suppliers solicited, the bids received, and costs negotiated, and the recommended Subcontractors/Suppliers for each category of Work. 2.7.4 The approved Subcontractors/Suppliers will provide a Schedule of Values that reflects their final accepted bid proposal, which will be used to create the overall Project Schedule of Values. 2.7.5 If after receipt of sub-bids or after award of Subcontractors and Suppliers, the City objects to any nominated Subcontractor/Supplier or to any self-performed Work for good reason, the CM@Risk will nominate a substitute Subcontractor or Supplier, preferably, if such option is still available, from those who submitted Subcontractor bids for the Work affected. Once such substitute Subcontractors and Suppliers are consented to by the City, the CM@Risk's proposed GMP for the Work or portion thereof will be correspondingly adjusted to reflect any higher or lower costs from any such substitution. 2.7.6 Promptly after receipt of the Notice of Intent to Award, the City will conduct a pre-award conference with the CM@Risk and other Project Team members. At the pre-award conference, the CM@Risk will (a) review the nominated slate of Subcontractors and Suppliers and discuss any concerns with or objections that the City has to any nominated Subcontractor or Supplier; (b) discuss City concerns relating to any proposed self- performed Work; (c) review the CM@Risk’s proposed Contract Price for the Work during the construction phase; (d) discuss the conditions, if any, under which the City will agree to leave any portion of the remaining CM@Risk Contingency within the Contract Price for the construction phase Work; (e) resolve possible time frames for the Date of commencement of the Contract Time for the construction phase Work; (f) schedule the pre-construction conference; and (g) discuss other matters of importance. ARTICLE 3 – PERIOD OF SERVICES 3.1 The design phase services described in this Contract will be performed by CM@Risk in accordance with the most current update/revised Project Schedule. Failure on the part of the CM@Risk to adhere to the Project Schedule requirements for activities for which it is responsible will be sufficient grounds for termination of this Contract by the City. 3.1.1 Upon failure to adhere to the approved schedule, City may provide written notice to CM@Risk that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within three days of CM@Risk’s receipt of such notice. 3.2 If the date of performance of any obligation or the last day of any time period provided for herein should fall on a Saturday, Sunday, or holiday for the City, then said obligation will be due and owing, and said time period will expire, on the first day thereafter which is not a Saturday, Sunday or legal City holiday. Except as may otherwise be set forth herein, any performance provided for herein will be timely made if completed no later than 5:00 p.m. (Denton time) on the day of performance. ARTICLE 4 – CONTRACT AMOUNT AND PAYMENTS 4.1 CONTRACT AMOUNT 4.1.1 Based on the design phase services fee proposal submitted by the CM@Risk and accepted by the City (which by reference is made a part of this Contract); the City will pay the CM@Risk a fee not to exceed $452,147 as follows: Total Contract Amount, not to exceed, $452,147 4.2 PAYMENTS 4.2.1 Requests for monthly payments by the CM@Risk for design phase services will be submitted in a form acceptable to the City and will be accompanied by a progress report, detailed invoices and receipts, if applicable. Any requests for payment will include, as a minimum, a narrative description of the tasks accomplished during the billing period, a listing of any Deliverables submitted, and copies of any Subconsultants’ requests for payment, plus similar narrative and listings of Deliverables associated with their Work. Payment for services negotiated as a lump sum shall be made in accordance with the percentage of work completed during the preceding month. Services negotiated as a not-to-exceed fee will be paid in accordance with the work effort expended on that service during the preceding month. 4.2.2 The fees for the CM@Risk and any Subconsultants will be based upon the hourly rate schedule included as Exhibit B, attached. 4.2.3 The CM@Risk will pay all sums due Subconsultants for services and reimbursable expenses within 14 calendar days after DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 670 the CM@Risk has received payment for those services from the City. In no event will the City pay more than 90 percent of the Contract Amount until final acceptance of all design phase services, and award of the final approved GMP for the entire Project by City Council. 4.2.4 The CM@Risk agrees that no charges or claims for costs or damages of any type will be made by it for any delays or hindrances beyond the reasonable control of the City during the progress of any portion of the services specified in this Contract. Such delays or hindrances, if any, will be solely compensated for by an extension of time for such reasonable period as may be mutually agreed between the parties. It is understood and agreed, however, that permitting the CM@Risk to proceed to complete any services, in whole or in part after the date to which the time of completion may have been extended, will in no way act as a waiver on the part of the City of any of its legal rights herein. 4.2.5 If any service(s) executed by the CM@Risk is abandoned or suspended in whole or in part, for a period of more than 180 days through no fault of the CM@Risk, the CM@Risk is to be paid for the services performed prior to the abandonment or suspension. ARTICLE 5 - CITY'S RESPONSIBILITIES 5.1 The City, at no cost to the CM@Risk, will furnish the following information: 5.1.1 One copy of data the City determines pertinent to the work. However, the CM@Risk will be responsible for searching the records and requesting information it deems reasonably required for the Project. 5.1.2 All available data and information pertaining to relevant policies, standards, criteria, studies, etc. 5.1.3 The name of the City employee or City’s representative who will serve as the Project Manager during the term of this Contract. The Project Manager has the authority to administer this Contract and will monitor the CM@Risk’s compliance with all terms and conditions stated herein. All requests for information from or decisions by the City on any aspect of the work or Deliverables will be directed to the Project Manager. 5.2 The City additionally will: 5.2.1 Contract separately with one or more design professionals to provide architectural and/or engineering design services for the Project. The scope of services for the Design Professional will be provided to the CM@Risk for its information. The CM@Risk will have no right, to limit or restrict any changes of such services that are otherwise mutually acceptable to the City and Design Professional. 5.2.2 Supply, without charge, all necessary copies of programs, reports, drawings, and specifications reasonably required by the CM@Risk except for those copies whose cost has been reimbursed by the City. 5.2.3 Provide the CM@Risk with adequate information in its possession or control regarding the City’s requirements for the Project. 5.2.4 Give prompt written notice to the CM@Risk when the City becomes aware of any default or defect in the Project or non- conformance with the Drawings and Specifications, or any of the services required hereunder. Upon notice of failure to perform, the City may provide written notice to CM@Risk that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within three days of CM@Risk’s receipt of such notice. 5.2.5 Notify the CM@Risk of changes affecting the budget allocations or schedule. 5.3 The City’s Project Manager will have authority to approve the Project Budget and Project Schedule, and render decisions and furnish information the City’s Project Manager deems appropriate to the CM@Risk. ARTICLE 6 – CONTRACT CONDITIONS 6.1 PROJECT DOCUMENTS AND COPYRIGHTS 6.1.1 City Ownership of Project Documents: All work products (electronically or manually generated) including but not limited to: cost estimates, studies, design analyses, Computer Aided Drafting and Design (CADD) digital files, and other related documents which are prepared specifically in the performance of this Contract (collectively referred to as Project Documents) are to be and remain the property of the City and are to be delivered to the Project Manager before the final payment is made to the CM@Risk. Nonetheless, in the event these Projects Documents are altered, modified or adapted without the written consent of the CM@Risk, which consent the CM@Risk will not unreasonably withhold, the City agrees to hold the CM@Risk harmless to the extent permitted by law, from the legal liability arising out of and or resulting from the City’s alteration, modification or adaptation of the Project Documents. 6.1.2 CM@Risk to Retain Copyrights: The copyrights, patents, trade secrets or other intellectual property rights associated with the ideas, concepts, techniques, inventions, processes or works of authorship developed or created by the CM@Risk, its Subconsultants or personnel, during the course of performing this Contract or arising out of the Project will belong to the DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 671 CM@Risk, but will remain available for use by the City for this Project under the terms of this Contract. 6.1.3 License to City for Reasonable Use: The CM@Risk hereby grants, and will require its Subconsultants to grant, a license to the City, its agents, employees, and representatives for an indefinite period of time to reasonably use, make copies, and distribute as appropriate the Project Documents, works or Deliverables developed or created for the Project and this Contract. This license will also include the making of derivative works. In the event that the derivative works require the City to alter or modify the Project Documents, then paragraph 6.1.1 applies. 6.1.4 Documents to Bear Seal: When applicable and required by state law, the CM@Risk and its Subconsultants will endorse by a Texas professional seal all plans, works, and Deliverables prepared by them for this Contract. 6.2 COMPLETENESS AND ACCURACY OF CM@RISK'S WORK 6.2.1 The CM@Risk will be responsible for the completeness and accuracy of its reviews, reports, supporting data, and other design phase Deliverables prepared or compiled pursuant to its obligations under this Contract and will at its sole own expense correct its work or Deliverables. Any damage incurred by the City as a result of additional construction cost caused by such willful or negligent errors, omissions or acts shall be chargeable to the CM@Risk to the extent that such willful or negligent errors, omissions and acts fall below the standard of care and skill that a professional CM@Risk in Denton, Texas would exercise under similar conditions. The fact that the City has accepted or approved the CM@Risk’s work or Deliverables will in no way relieve the CM@Risk of any of its responsibilities under the Contract, nor does this requirement to correct the work or Deliverable constitute a waiver of any claims or damages otherwise available by law or Contract to the City. Correction of errors, omissions and acts discovered on architectural or engineering plans and specifications shall be the responsibility of the Design Professional. 6.3 ALTERATION IN CHARACTER OF WORK 6.3.1 In the event an alteration or modification in the character of Work or Deliverable results in a substantial change in this Contract, thereby materially increasing or decreasing the scope of services, cost of performance, or Project Schedule, the Work or Deliverable will nonetheless be performed as directed by the City. However, before any altered or modified Work begins, a Change Order or amendment will be approved and executed by the City and the CM@Risk. Such Change Order or amendment will not be effective until approved by the City. 6.3.2 Additions to, modifications, or deletions from the Project provided herein may be made, and the compensation to be paid to the CM@Risk may accordingly be adjusted by mutual agreement of the contracting parties. 6.3.3 No claim for extra work done or materials furnished by the CM@Risk will be allowed by the City except as provided herein, nor will the CM@Risk do any work or furnish any material(s) not covered by this Contract unless such work or material is first authorized in writing. Work or material(s) furnished by the CM@Risk without such prior written authorization will be the CM@Risk’s sole jeopardy, cost, and expense, and the CM@Risk hereby agrees that without prior written authorization no claim for compensation for such work or materials furnished will be made. 6.4 DATA CONFIDENTIALITY 6.4.1 As used in the Contract, data means all information, whether written or verbal, including plans, photographs, studies, investigations, audits, analyses, samples, reports, calculations, internal memos, meeting minutes, data field notes, work product, proposals, correspondence, and any other similar documents or information prepared by or obtained by the CM@Risk in the performance of this Contract. 6.4.2 The parties agree that all data, including originals, images, and reproductions, prepared by, obtained by, or transmitted to the CM@Risk in connection with the CM@Risk’s performance of this Contract is confidential and proprietary information belonging to the City to the extent allowed by Texas law. 6.4.3 The CM@Risk will not divulge data to any third party without prior written consent of the City. The CM@Risk will not use the data for any purposes except to perform the services required under this Contract. These prohibitions will not apply to the following data: 6.4.3.1 Data which was known to the CM@Risk prior to its performance under this Contract unless such data was acquired in connection with work performed for the City. 6.4.3.2 Data which was acquired by the CM@Risk in its performance under this Contract and which was disclosed to the CM@Risk by a third party, who to the best of the CM@Risk’s knowledge and belief, had the legal right to make such disclosure and the CM@Risk is not otherwise required to hold such data in confidence; or 6.4.3.3 Data, which is required to be disclosed by the CM@Risk by virtue of law, regulation, or court, including but not limited to the Texas Public Information Act, Texas Government Code Chapter 552. 6.4.4 In the event the CM@Risk is required or requested to disclose data to a third party, or any other information to which the CM@Risk became privy as a result of any other contract with the City, the CM@Risk will first notify the City as set forth in this Article of the request or demand for the data. The CM@Risk will timely give the City sufficient facts, such that the City can have a meaningful opportunity to either first give its consent or take such action that the City may deem appropriate DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 672 to protect such data or other information from disclosure. 6.4.5 The CM@Risk, unless prohibited by law, within ten calendar days after completion of services for a third party on real or personal property owned or leased by the City, will promptly deliver, as set forth in this section, a copy of all data to the City. All data will continue to be subject to the confidentiality agreements of this Contract. 6.4.6 The CM@Risk assumes all liability for maintaining the confidentiality of the data in its possession and agrees to compensate the City if any of the provisions of this section are violated by the CM@Risk, its employees, agents or Subconsultants. Solely for the purposes of seeking injunctive relief, it is agreed that a breach of this section will be deemed to cause irreparable harm that justifies injunctive relief in court. 6.5 PROJECT STAFFING 6.5.1 Prior to the start of any work or Deliverable under this Contract, the CM@Risk will submit to the City, an organization chart for the CM@Risk staff and Subconsultants and detailed resumes of key personnel listed in its response to the City’s Request for Qualifications or subsequent fee proposals (or revisions thereto), that will be involved in performing the services prescribed in the Contract. Unless, otherwise informed, the City hereby acknowledges its acceptance of such personnel to perform such services under this Contract. In the event the CM@Risk desires to change such key personnel from performing such services under this Contract, the CM@Risk will submit the qualifications of the proposed substituted personnel to the City for prior approval. Key personnel will include, but are not limited to, principal-in-charge, project manager, superintendent, project director or those persons specifically identified to perform services of cost estimating, scheduling, value engineering, and procurement planning. 6.5.2 The CM@Risk will maintain an adequate number of competent and qualified persons, as determined by the City, to ensure acceptable and timely completion of the scope of services described in this Contract throughout the period of those services. If the City objects, with reasonable cause, to any of the CM@Risk’s staff, the CM@Risk will take prompt corrective action acceptable to the City and, if required, remove such personnel from the Project and replace with new personnel acceptable to the City. 6.6 INDEPENDENT CONTRACTOR 6.6.1 The CM@Risk is and will be an independent contractor and whatever measure of control the City exercises over the work or Deliverable pursuant to the Contract will be as to the results of the work only. No provision in this Contract will give or be construed to give the City the right to direct the CM@Risk as to the details of accomplishing the work or Deliverable. These results will comply with all applicable laws and ordinances. 6.7 SUBCONSULTANTS 6.7.1 Prior to beginning the work or Deliverable, the CM@Risk will furnish the City for approval, the names of all Subconsultants, if any, to be used on this Project. Subsequent changes are subject to the approval of the City. 6.8 TERMINATION 6.8.1 The City and the CM@Risk hereby agree to the full performance of the covenants contained herein, except that the City reserves the right, at its discretion and without cause, to terminate or abandon any or all services provided for in this Contract, or abandon any portion of the Project for which services have been performed by the CM@Risk. 6.8.2 In the event the City abandons any or all of the services or any part of the services as herein provided, the City will so notify the CM@Risk in writing, and the CM@Risk will immediately after receiving such notice is to discontinue advancing the Work specified under this Contract and mitigate the expenditure, if any, of costs resulting from such abandonment or termination. 6.8.3 The CM@Risk, upon such termination or abandonment, will promptly deliver to the City all reports, estimates and other work or Deliverable entirely or partially completed, together with all unused materials supplied by the City. 6.8.4 The CM@Risk will appraise the work completed and submit an appraisal to the City for evaluation. The City will have the right to inspect the CM@Risk's work or Deliverable to appraise the work completed. 6.8.5 The CM@Risk will receive compensation in full for services satisfactorily performed to the date of such termination and the reasonable costs and expenses attributable to such termination. The fee will be paid in accordance with Article 4 of this Contract and will be an amount mutually agreed upon by the CM@Risk and the City. If there is no mutual agreement, the final determination will be made in accordance with paragraph 6.9, "Disputes". However, in no event will the fee exceed that set forth in Article 4 or as amended in accordance with paragraph 6.3, “Alteration in Character of Work”. The City will make the final payment within sixty Days after the CM@Risk has delivered the last of the partially or otherwise completed work items and the final fee has been agreed upon. 6.9 DISPUTES 6.9.1 In any unresolved dispute arising out of an interpretation of this Contract or the duties required therein, the final DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 673 determination at the administrative level will be made by the City Manager or their designee. 6.10 WITHHOLDING PAYMENT 6.10.1 The City reserves the right to withhold funds from the City’s progress payments up to the amount equal to the claims the City may have against the CM@Risk, until such time that a settlement on those claims has been reached. 6.11 RECORDS/AUDIT 6.11.1 Records of the CM@Risk’s direct personnel payroll, reimbursable expenses pertaining to this Project, and records of accounts between the City and CM@Risk will be kept on a generally recognized accounting basis and shall be available for up to three years following final completion of the Project. The City, its authorized representative, and/or the appropriate federal agency, reserve the right to audit the CM@Risk’s records to verify the accuracy and appropriateness of all pricing data, including data used to negotiate this Contract and any Change Orders. The City reserves the right to decrease Contract Amount and/or payments made on this Contract if, upon audit of the CM@Risk’s records, the audit discloses the CM@Risk has provided false, misleading, or inaccurate cost and pricing data. 6.11.2 The CM@Risk will include a provision similar to paragraph 6.11.1 in all of its agreements with Subconsultants, Subcontractors, and Suppliers providing services under this Contract to ensure the City, its authorized representative, and/or the appropriate federal agency, has access to the Subconsultants’, Subcontractors’, and Suppliers’ records to verify the accuracy of cost and pricing data. The City reserves the right to decrease Contract Amount and/or payments made on this Contract if the above provision is not included in Subconsultant, Subcontractor, and Supplier contracts, and one or more of those parties do not allow the City to audit their records to verify the accuracy and appropriateness of pricing data. 6.12 INDEMNIFICATION 6.12.1 The CM@Risk agrees to defend, indemnify and hold harmless the City of Denton, its officers, agents and employees, and any jurisdiction or agency issuing permits for any work included in the Project, their officers, agents and employees, hereinafter individually and collectively referred to as “indemnitee”, from all suits and claims, including attorney's fees and cost of litigation, actions, losses, damage, expenses, costs or claims of any character or any nature arising out of the Work or Deliverable done in fulfilling the terms of this Contract, or on account of any act, claim or amount arising out of or recovered under Workers’ Compensation Law, or arising out of the failure of the CM@Risk to conform to any statutes, ordinances, regulation, law or court decree. It is agreed that the CM@Risk will be responsible for primary loss investigation, defense, and judgment costs where this Contract of indemnity applies. In consideration of the award of this contract, the CM@Risk agrees to waive all rights of subrogation against the City, its officers, officials, agents and employees for losses arising from the work performed by the CM@Risk for the City. 6.13 NOTICES 6.13.1 Unless otherwise provided, any notice, request, instruction, or other document to be given under this Agreement by any party to any other party shall be in writing and shall be delivered in person or by courier or facsimile transmission or mailed by certified mail, postage prepaid, return receipt requested and shall be deemed given upon (a) confirmation of receipt of a facsimile transmission, (b) confirmed delivery by hand or standard overnight mail, or (c) upon the expiration of three (3) business days after the day mailed by certified mail, as follows: Or to other such place and with such other copies as either Party may designate as to itself by written notice to the other Party. Rejection, any refusal to accept, or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal, or inability to deliver. To City: City of Denton Purchasing Manager – File 8055 901B Texas Street Denton, TX 76201 To CM@Risk Jamie Rivera Sundt Construction, Inc. 8445 Freeport Parkway, Suite 240 Irving, TX 75063 Copy to: Design Professional Colton Hermes (if applicable) Kimley-Horn and Associates, Inc. 100 W. Oak Street, Suite 203 Denton, TX 76201 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 674 6.14 EQUAL OPPORTUNITY/AFFIRMATIVE ACTION 6.14.1 The CM@Risk will comply with the provisions of this Contract, pertaining to discrimination and accepting applications or hiring employees. The CM@Risk will not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, gender, national origin, age, or disability nor otherwise commit an unfair employment practice. The CM@Risk will take affirmative action to ensure that applicants are employed, and employees are dealt with during employment, without regard to their race, color, religion, gender or national origin, age or disability. Such action will include but not be limited to the following: employment, promotion, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship as well as all other labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Contract. The CM@Risk further agrees that this clause will be incorporated in all Subcontracts, and Subconsultants and Suppliers contracts associated with the Project and entered into by the CM@Risk. 6.15 COMPLIANCE WITH FEDERAL LAWS 6.15.1 The CM@Risk understands and acknowledges the applicability of the Americans With Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to it. The CM@Risk agrees to comply with these and all laws in performing this Contract and to permit the City to verify such compliance. 6.16 CONFLICT OF INTEREST 6.16.1 To evaluate and avoid potential conflicts of interest, the CM@Risk will provide written notice to the City, as set forth in this section, of any work or services performed by the CM@Risk for third parties that may involve or be associated with any real property or personal property owned or leased by the City. Such notice will be given seven business days prior to commencement of the Project by the CM@Risk for a third party, or seven business days prior to an adverse action as defined below. Written notice and disclosure will be sent to: City of Denton Attn: Purchasing Manager Materials Management 901B Texas Street Denton, TX 76209 6.16.2 Actions considered to be adverse to the City under this Contract include but are not limited to: (a) Using data as defined in the Contract, acquired in connection with this Contract to assist a third party in pursuing administrative or judicial action against the City. (b) Testifying or providing evidence on behalf of any person in connection with an administrative or judicial action against the City; and (c) Using data to produce income for the CM@Risk or its employees independently of performing the services under this Contract, without the prior written consent of the City. 6.16.3 The CM@Risk represents that except for those persons, entities and projects previously identified in writing to the City, the services to be performed by the CM@Risk under this Contract are not expected to create an interest with any person, entity, or third party project that is or may be adverse to the interests of the City. 6.16.4 The CM@Risk’s failure to provide a written notice and disclosure of the information as set forth in this section will constitute a material breach of this Contract. 6.17 CONTRACTOR'S LICENSE 6.17.1 Prior to award of the Contract, the CM@Risk must provide to the City’s Project Manager, its Contractor's License Classification and number, if any, and its Federal Tax I.D. number. 6.18 SUCCESSORS AND ASSIGNS 6.18.1 The City and the CM@Risk will each bind itself, and their partners, successors, assigns, and legal representatives to the other party to this Contract and to the partners, successors, assigns, and legal representatives of such other party in respect to all covenants of this Contract. Neither the City nor the CM@Risk will assign, sublet, or transfer its interest in this Contract without the written consent of the other. In no event will any contractual relation be created or be construed to be created as between any third party and the City. 6.19 FORCE MAJEURE 6.19 The City of Denton, the CM@Risk, and any Subcontractors or Sub-Subcontractors shall not be responsible for performance under this Contract should it be prevented from performance by an act of war, order of legal authority, act of DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 675 God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton, the CM@Risk, and any Subcontractors or Sub-Subcontractors, as applicable. In the event of an occurrence under this Section, the City of Denton, the CM@Risk, and any Subcontractors or Sub-Subcontractors, as applicable, will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the City of Denton, the CM@Risk, and any Subcontractors or Sub-Subcontractors, as applicable, continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The CM@Risk and any Subcontractors or Sub-Subcontractors, as applicable, shall immediately notify the City of Denton Project 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. 6.20 COVENANT AGAINST CONTINGENT FEES 6.20.1 The CM@Risk warrants that no person has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, and that no member of the City Council, or any employee of the City of Denton has any interest, financially, or otherwise, in the firm. The City of Denton will in the event of the breach or violation of this warranty, have the right to annul this Contract without liability, or at its discretion to deduct from the Contract Amount or consideration, the full amount of such commission, percentage, brokerage, or contingent fee. 6.21 NON-WAIVER PROVISION 6.21.1 The failure of either party to enforce any of the provisions of this Contract or to require performance by the other party of any of the provisions hereof will not be construed to be a waiver of such provisions, nor will it affect the validity of this Contract or any part thereof, or the right of either party to thereafter enforce each and every provision. 6.22 JURISDICTION 6.22.1 This Contract will be deemed to be made under and will be construed in accordance with and governed by the laws of the State of Texas, without regard to the conflicts or choice of law provisions thereof. Under the provisions of Chapter 272 of the Texas Local Government Code, the City has waived its immunity by entering into this Contract. However, the City’s sovereign immunity is waived only to the extent set forth by statute. An action to enforce any provision of this Contract or to obtain any remedy with respect hereto will be brought and tried in the State District Courts located in Denton County, Texas, and for this purpose, each party hereby expressly and irrevocably consents to the sole and exclusive jurisdiction and venue of such Court. 6.23 SURVIVAL 6.23.1 All warranties, representations, and indemnifications by the CM@Risk will survive the completion or termination of this Contract. 6.24 MODIFICATION 6.24.1 No supplement, modification, or amendment of any term of this Contract will be deemed binding or effective unless in writing and signed by the parties hereto and in conformation with provisions of this Contract, except as expressly provided herein to the contrary. 6.25 SEVERABILITY 6.25.1 If any provision of this Contract or the application thereof to any person or circumstance will be invalid, illegal or unenforceable to any extent, the remainder of this Contract and the application thereof will not be affected and will be enforceable to the fullest extent permitted by law. 6.26 INTEGRATION 6.26.1 This Contract contains the full agreement of the parties hereto. Any prior or contemporaneous written or oral agreement between the parties regarding the subject matter hereof is merged and superseded hereby. 6.27 TIME IS OF THE ESSENCE 6.27.1 Time of each of the terms, covenants, and conditions of this Contract is hereby expressly made of the essence. 6.28 THIRD PARTY BENEFICIARY 6.28.1 This Contract will not be construed to give any rights or benefits in the Contract to anyone other than the City and the CM@Risk. All duties and responsibilities undertaken pursuant to this Contract will be for the sole and exclusive benefit of the City and the CM@Risk and not for the benefit of any other party. 6.29 COOPERATION AND FURTHER DOCUMENTATION 6.29.1 The CM@Risk agrees to provide the City such other duly executed documents as may be reasonably requested by the City to implement the intent of this Contract. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 676 6.30 CONFLICT IN LANGUAGE 6.30.1 All work or Deliverables performed will conform to all applicable City of Denton codes, ordinances and requirements as outlined in this Contract. If there is a conflict in interpretation between provisions in this Contract and any Exhibits, the provisions in this Contract will prevail. 6.31 CITY'S RIGHT OF CANCELLATION 6.31.1 All parties hereto acknowledge that this Contract is subject to cancellation by the City of Denton pursuant to the provisions of Texas Local Government Code Chapters 252 and 272, Texas Government Code Chapter 2269, and the general laws of the State of Texas. 6.32 CONFIDENTIALITY OF PLANS & SPECIFICATIONS 6.32.1 Any plans or specifications received by the CM@Risk regarding this project are for official use only. The CM@Risk may not share them with others except as required to fulfill contract obligations with the City of Denton. 6.32.2 Any plans the CM@Risk generates must include the following statement in the Title Block on every page: “These plans are for Official use only and may not be shared with others except as required to fulfill the obligations of CM@Risk’s contract with the City of Denton. This document must be kept secure at all times.” ARTICLE 7 – INSURANCE REQUIREMENTS The CM@Risk. Subcontractors and Subconsultants shall procure and maintain until all of their obligations have been discharged, including any warranty periods under this Contract are satisfied, insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the CM@Risk, its agents, representatives, employees, or Subconsultants. The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City in no way warrants that the minimum limits contained herein are sufficient to protect the CM@Risk from liabilities that might arise out of the performance of the work under this Contract by the CM@Risk, his agents, representative, employees, or Subconsultants. CM@Risk is free to purchase such additional insurance as may be determined necessary. 7.1 MINIMUM SCOPE AND LIMITS OF INSURANCE 7.1.1 CM@Risk will provide coverage at least as broad and with limits of liability not less than those stated below. 7.1.1.1 Commercial General Liability-Occurrence Form Policy shall include bodily injury, property damage, broad form contractual liability and XCU coverage. General Aggregate $2,000,000 Products-Completed Operations Aggregate $1,000,000 Personal & Advertising Injury $1,000,000 Each Occurrence $1,000,000 (a) The policy shall be endorsed to include the following additional insured language: “The City of Denton shall be named as an additional insured with respect to liability arising out of the activities performed by, or on behalf of the CM@Risk". 7.1.1.2 Automobile Liability Bodily injury and property damage for any owned, hired, and non-owned vehicles used in the performance of this Contract. Combined Single Limit (CSL) $1,000,000 (a) The policy shall be endorsed to include the following additional insured language: “The City of Denton shall be named as an additional insured with respect to liability arising out of the activities performed by, or on behalf of the CM@Risk", including automobiles owned, leased or hired or borrowed by the CM@Risk”. 7.1.1.3 Workers Compensation and Employers Liability Workers Compensation Statutory Employers Liability Each Accident $ 100,000 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 677 Disease – Each Employee $ 100,000 Disease – Policy Limit $ 500,000 (a) Policy shall contain waiver of subrogation against the City of Denton. 7.2 ADDITIONAL INSURANCE REQUIREMENTS 7.2.1 The policies shall include, or be endorsed to include, the following provisions. 7.2.2 On insurance policies where the City of Denton is named as additional insured, the City of Denton shall be an additional insured to the full limits of liability purchased by the CM@Risk even if those limits of liability are in excess of those required by this Contract. 7.2.3 The CM@Risk’s insurance coverage shall be primary insurance and non-contributory with respect to all other available sources. 7.2.4 Coverage provided by the CM@Risk shall not be limited to the liability assumed under the indemnification provisions of this Contract. 7.3 SUBCONSULTANT INSURANCE 7.3.1 CM@Risk’s certificate(s) shall include all subcontractors as additional insureds under its policies or subconsultants shall maintain separate insurance as determined by the CM@Risk, however, subconsultants limits of liability shall not be less than $1,000,000 per occurrence / $2,000,000 aggregate. 7.4 NOTICE OF CANCELLATION 7.4.1 Each insurance policy required by the insurance provisions of this Contract will provide the required coverage and not be suspended, voided, canceled, reduced in coverage or endorsed to lower limits except after thirty (30) days prior written notice has been given to the City. Such notice shall be sent by certified mail, return receipt requested and sent directly to the City’s Designated Project Manager at: City of Denton Attn: Purchasing Manager Materials Management 901B Texas Street Denton, TX 76209 7.5 ACCEPTABILITY OF INSURERS 7.5.1 Insurance is to be placed with insurers duly licensed or approved unlicensed companies in the State of Texas, and with an “A.M. Best” rating of not less than B+ VI. The City in no way warrants that the above required minimum insurer rating is sufficient to protect the CM@Risk from potential insurer insolvency. 7.6 VERIFICATION OF COVERAGE 7.6.1 The CM@Risk will furnish the City, Certificates of Insurance (ACORD form or equivalent approved by the City) as required by this Contract. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. 7.6.2 All certificates and endorsements are to be received and approved by the City before work commences. Each insurance policy required by this Contract must be in effect at or prior to the earlier of commencement of work under this Contract and remain in effect for the duration of the Project. Failure to maintain the insurance policies as required by this Contract or to provide evidence of renewal is a material breach of contract. 7.6.3 All certificates required by this Contract will be sent directly to the Engineering and Architectural Services Department Contracts Administration Section contracts officer for this Project. The City project/contract number and project description shall be noted on the certificates of insurance. The City reserves the right to require complete, certified copies of all insurance policies required by this Contract, at any time. DO NOT SEND CERTIFICATES OF INSURANCE TO THE CITY’S RISK MANAGEMENT DIVISION. 7.7 APPROVAL 7.7.1 Any modification or variation from the insurance requirements in this Contract must be approved by the Law Department, whose decision will be final. Such action will not require a formal contract amendment but may be made by administrative action. This Contract will be in full force and effect only when it has been approved and executed by the duly authorized City officials. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 678 IN WITNESS WHEREOF, the parties hereto have executed this Contract on . CITY OF DENTON, TEXAS CM@Risk BY: BY: _____________________ _______________________ _____________________ _______________________ Printed Name Printed Name _____________________ ________________________ Title Title ATTEST: City Clerk _____________________ APPROVED AS TO FORM: __________________ City Attorney THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A Senior Vice President Joe Dooley Director of Capital Projects/City Engineer Rebecca Diviney Capital Projects/Engineering 679 EXHIBIT A – PROJECT DESCRIPTION Following is a brief description of the Project for which the design phase service services specified in this Contract are to be performed: Full depth reconstruction of 118 street segments within the NBHD 2 & 6 project areas. This includes road reconstruction with subgrade stabilization, asphalt paving, concrete curb and gutter, and driveway replacements (limited to driveways that are within the existing right-of-way). The project will adhere to a holistic approach aimed at limiting future construction disruptions by replacing other aging public infrastructure within the limits of the project area. This includes replacing existing aging water and sanitary sewer lines, select stormwater infrastructure, limited sidewalk improvements, and street lighting. Design Phase Services will include the CM@Risk working with the City and its Design Engineer to share ideas and experience in assisting the Design Engineer in developing construction documents suitable for construction and suitable for preparing a Guaranteed Maximum Price. The Preconstruction Phase Services will include: 1. Prepare a Construction Management Plan (CMP), which may include the CM@Risk’s professional opinions concerning: (a) Project Milestone dates and the Project Schedule, including the broad sequencing of the design and construction of the Project, (b) investigations, if any, to be undertaken to ascertain subsurface conditions and physical conditions of existing surface and subsurface facilities and underground utilities, (c) alternate strategies for fast- tracking and/or phasing the construction, (d) the number of separate sub-agreements to be awarded to Subcontractors and Suppliers for the Project construction, (e) permitting strategy, (f) safety and training programs, (g) construction quality control, (h) a commissioning program, (i) the cost estimate and basis of the model, and (j) a matrix summarizing each Project Team member’s responsibilities and roles. 2. Provide a Project Manager, all Key Personnel, and all other associated personnel necessary to fully meet the CMAR obligations for the Design Phase Services; In providing such Design Phase Services, Contractor does not assume any responsibility for design errors, omissions, or inconsistencies. 3. Consult with, advise and provide recommendations to the City and the Design Engineer on all aspects of the planning, design, and proposed construction and drawings and specifications; 4. Provide constructability review and consult on constructability issues in the development of the 30%, 60% and 90% final design review plans and specifications, including recommendations on design packaging to advance construction, material availability and independent quantity calculations to verify quantities provided by Design Engineer; 5. Provide list of additional details needed on the 30%, 60% and 90% final design review plans that would be needed to complete the project in the allotted time or to accelerate aspects of the work; 6. Preconstruction lead, along with any other necessary personnel shall attend review workshops with the City and the Design Engineer at the 30%, 60% and 90% final design review milestones; 7. Provide on-going value engineering review, including written reports and recommendations on the 30%, 60% and 90% final design review, as applicable; 8. Identify, evaluate and propose cost-effective alternatives; DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 680 9. Develop independent detailed construction cost estimates for the Project and Critical Path Method schedules at the 30%, 60% and 90% final design review milestones; 10. Identify long-lead equipment procurement needs and submit a report to the City; 11. Identify, evaluate and recommend elements of the Project that may require less than 100% design; 12. Make recommendations to the City regarding the division of the Work to facilitate bids and proposals for the major elements of the Work; 13. Advise the City of ways to gain efficiency in Project delivery; 14. Provide a complete, detailed, written GMP proposal including line item cost breakdowns with conditions, assumptions, and CMAR contingency; 15. Prepare and submit a construction site safety plan; 16. Develop, implement and maintain a quality management plan that assures conformance to every section of the specifications. 17. Schedule all Project construction related activities; 18. Identify Work which the Proposer intends to self-perform. Identify and recommend which work, if any, should be procured through value based competitive selections, in lieu of low bid; 19. Identify and recommend Early Works Packages; 20. Participate in Project kick off meeting(s) for Design Phase Services; 21. Participate in additional meetings or workshops with the Design Engineer, Owner or others as needed. Upon conclusion of evaluating input from CM@R on the 90% documents, Design Engineer will incorporate such items as it deems appropriate, with the resulting modified 90% documents constituting the Final Pricing Package for use in calculating GMP. Upon receipt of the Final Pricing Package, the CMAR shall: 1. Thoroughly review these documents; 2. Develop a Guaranteed Maximum Price; 3. Prepare a detailed schedule of construction of the project; 4. Prepare a list of additional details needed to supplement the 90% complete construction documents and when such details would be needed to complete the project within the allotted time. 5. Attend a minimum of two all-day meetings at the offices of the City in Denton, Texas, to present the basis of the amount of the Guaranteed Maximum Construction Cost and negotiate in good faith based on open book cost estimates; 6. Attend all-day workshop meetings, in addition to those listed above, excluding the effort for GMP pricing and negotiation, at the offices of the City or Design Engineer in Denton, Texas. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 681 EXHIBIT B - HOURLY RATE SCHEDULE The schedule of hourly labor rates for employees of the CM@Risk and its Subconsultants follow and are based on the approved proposal submitted to the City. LIST OF CLASSIFICATIONS: Classification Direct Labor Rate Total Labor Rate PROJECT MANAGER $ 85.60 $ 159.60 CONSTRUCTION SUPERINTENDENT $ 66.35 $ 129.70 PRE-CONSTRUCTION PROJECT MANAGER $ 120.19 $ 208.30 PRECONSTRUCTION MOT/UTILITY MGR $ 65.00 $ 128.80 CHIEF ESTIMATOR $ 102.89 $ 183.50 SENIOR ESTIMATOR $ 67.31 $ 131.20 JUNIOR ESTIMATOR $ 48.08 $ 101.30 SAFETY MANAGER $ 62.50 $ 123.70 QUALITY CONTROL MANAGER $ 60.09 $ 120.00 SCHEDULER $ 64.90 $ 127.40 COMMUNITY ENGAGEMENT $ 48.07 $ 101.30 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 682 EXHIBIT C - SUBMITTAL REQUIREMENTS FOR THE GMP GMP submittal, one copy for review. One printed, signed original copy and a digital copy in searchable PDF format will be requested by the City of Denton prior to contract execution. Table of Contents: 1. Scope of Work 2. Summary of the GMP 3. Schedule of Values – summary spreadsheet and backup documents 4. List of Plans and Specifications used for GMP Proposal 5. List of clarification and assumptions 6. Project Schedule 1. Scope of work will consist of a brief description of the work to be performed by CM@Risk and major points that the CM@Risk and the City must be aware of pertaining to the scope. (normally one paragraph is sufficient.) 2. A summary of the GMP with a total for each of the components of the GMP as listed in its definition in Article 1 as shown in the table below: The general conditions fee includes bond and insurance cost. All costs should be listed individually for future use. PROJECT #: DATE: PROJECT NAME: GMP Summary AMOUNT A. Cost of the Work (Labor, Materials, Equipment, Warranty) $ B. CM@Risk’s Contingency $ INDIRECT COSTS RATE C. Construction Fee % $ D. General Conditions % $ D1 Payment and Performance Bond $ % D2 Insurance $ % E. Sales Taxes % $ F. TOTAL GMP $ G. Owner’s Contingency $ H. Contract Amount $ Formulas: Total GMP: A+B+C+D+E = F Rates (Percentages) are calculated by dividing each amount by F, such as B/F, D/F, and D1/F (Do not acquire bond or insurance until notified by the City of Denton Project Manager.) DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 683 3. Schedule of Values - spread sheet with the estimated bid or cost organized by subcontract categories, allowances, bid contingency, general conditions costs, taxes, bonds, insurances, and the CM@Risk’s construction phase fee. The supporting document for the spreadsheet must be provided in an organized manner that correlates with the schedule of values. The backup information shall consist of the request for bids, bids received, and clarification assumptions used for the particular bid item listed on the schedule of values, if applicable. 4. A list of the Plans and Specifications with latest issuance date including all addenda used in preparation of the GMP proposal. The plans used for the GMP must be date stamped and signed by CM@Risk, Design Consultant, and Project Manager using the format below. Plans Used for Preparation of GMP No. CM@Risk Date Design Consultant Date Project Manager Date 5. A list of the clarifications and assumptions made by the CM@Risk in the preparation of the GMP proposal, to supplement the information contained in the documents. 6. A Critical Path Method (CPM) diagram construction schedule. NOTE: The submittal package must be kept as simple as possible all on 8 ½ x 11 sheets. Color or shading must be kept to a minimum. If used, make sure the color or shading will not affect the reproduction of the submittal in black and white. Final GMP submittal will consist of the following: 1. One printed copy of the GMP and one digital copy in searchable PDF format. 2. One copy of the plans and technical specifications used to arrive at the GMP (signed by Design Professional, CM@Risk and City’s Project Manager). For questions regarding the submittal requirements, please contact City of Denton Project Manager. DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 684 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A Sundt Construction, Inc. Exhibit CIQ 10/3/2022 X 685 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 7606CB92-91FA-487C-8346-56908376EE2A 686 Certificate Of Completion Envelope Id: 7606CB9291FA487C834656908376EE2A Status: Sent Subject: Please DocuSign: City Council Contract 8055 - CMAR for Neighborhood 2 & 6 Improvements Source Envelope: Document Pages: 31 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 9/27/2022 1:34:39 PM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 9/29/2022 3:17:35 PM Viewed: 9/29/2022 3:17:44 PM Signed: 9/29/2022 3:18:01 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 9/29/2022 3:18:06 PM Viewed: 9/29/2022 3:24:34 PM Signed: 9/29/2022 3:25:04 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/29/2022 3:25:07 PM Viewed: 9/30/2022 4:03:18 PM Signed: 9/30/2022 4:10:10 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Joe Dooley jedooley@sundt.com Senior Vice President Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 68.177.140.42 Sent: 9/30/2022 4:10:17 PM Viewed: 10/3/2022 8:13:29 AM Signed: 10/3/2022 8:20:59 AM Electronic Record and Signature Disclosure: Accepted: 10/3/2022 8:13:29 AM ID: 90545fa4-bc2e-44b5-bf9c-a895ea2807aa 687 Signer Events Signature Timestamp Rebecca Diviney Rebecca.Diviney@cityofdenton.com Director of Capital Projects/City Engineer Capital Projects/Engineering Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 10/3/2022 8:21:04 AM Viewed: 10/3/2022 9:54:22 AM Signed: 10/3/2022 9:54:45 AM Electronic Record and Signature Disclosure: Accepted: 10/3/2022 9:54:22 AM ID: b19fadef-e2d9-4314-88d4-55a3043dceee Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 10/3/2022 9:54:52 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/3/2022 4:45:25 PM ID: 06009068-3307-40c9-a664-74c218a7203f In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/29/2022 3:18:06 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Matt Meaker mbmeaker@sundt.com Security Level: Email, Account Authentication (None) Sent: 9/30/2022 4:10:15 PM Viewed: 9/30/2022 5:16:07 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 688 Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 10/3/2022 9:54:50 AM Viewed: 10/4/2022 10:30:35 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Seth Garcia Seth.Garcia@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 9/12/2022 2:43:50 PM ID: c557219a-c949-464a-a980-29b49154ad04 Cheyenne Defee cheyenne.defee@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Ryan Holloway rcholloway@sundt.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 9/29/2022 3:17:35 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 689 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Joe Dooley, Rebecca Diviney, Rosa Rios, Seth Garcia 690 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. 692 Neighborhood 2 & 6 2019 Street Reconstruction Bond Construction Manager at Risk Design Phase Contract City Council –November 1st, 2022 693 Neighborhood 2 & 6 Project Overview 2 •56,600 Linear feet of roadway reconstruction (118 segments) •30,700 Linear feet of water main replacement •28,400 Linear feet of wastewater main replacement •Sidewalk connectivity assessment •Streetlighting photometric study & lighting install •*Second Construction Manager @ Risk project November 1, 2022 ID 22-2195 694 Construction Manager at Risk One-Step Selection Process 1.Request for Proposals was advertised for Construction Manager at Risk services. Three (3) submissions were received and evaluated. Two (2) firms were elevated to the interview round of the process. 2.Firm interviews were held with the evaluation committee, firms were asked to present technical proposals for the Neighborhood 2 & 6 project and the qualifications of the proposed project team. •Sundt Construction, Inc. was selected by the staff Evaluation Committee based on their knowledge, experience, and ability to complete the design phase services. November 1, 2022 ID 22-2195 3 695 4 CMAR Design Phase Summary Contract/Amendment Cost Fund Source Summary of Item Design Phase Services (Lump Sum)$452,147.00 2019 Bond Cost Modeling, Constructability Review, Construction Phasing and Scheduling, Value Engineering, Project Coordination & Collaboration. Total Contract Amount:$452,147.00 November 1, 2022 ID 22-2195 696 Neighborhood 2 & 6 •Design Approval November 1st, 2022 •CM@R design phase contract approval November 1st, 2022 •First construction packages Q1 2024 o Project to be phased during construction. •Construction Complete Q4 2026 5 Project Schedule ID 22-2195 697 Staff Recommendation Adoption of an ordinance authorizing the approval of a construction manager at risk design phase contract between the City of Denton and Sundt Construction, Inc. •Contract is a not-to-exceed amount of $452,147.00 6November 1, 2022 ID 22-2195 698 Questions? 7November 1, 2022 ID 22-2195 699 City of Denton Legislation Text City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com File #:ID 22-2194,Version:1 AGENDA CAPTION Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing the City Manager to execute a contract with Mountain Cascade of Texas,LLC,for the construction of the I-35E -Mayhill Utility Relocations Project for the Water/Wastewater Utilities and Capital Projects/Engineering Department;providing for the expenditure of funds therefor;and providing an effective date (RFQ 7968-001 - awarded to Mountain Cascade of Texas,LLC,in the not-to-exceed amount of $15,008,997.15).The Public Utilities Board recommends approval (6 - 0). City of Denton Printed on 10/28/2022Page 1 of 1 powered by Legistar™700 City of Denton _____________________________________________________________________________________ AGENDA INFORMATION SHEET DEPARTMENT: Procurement CFO: Cassey Ogden DATE: November 1, 2022 SUBJECT Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager to execute a contract with Mountain Cascade of Texas, LLC, for the construction of the I-35E-Mayhill Utility Relocations Project for the Water/Wastewater Utilities and Capital Projects/Engineering Department; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7968-001 – awarded to Mountain Cascade of Texas, LLC, in the not-to-exceed amount of $15,008,997.15). The Public Utilities Board recommends approval (6 - 0). INFORMATION/BACKGROUND The City of Denton is responsible for relocating City utilities along the I-35 corridor extending from the intersection with Mayhill Road in the South to Milam Road on the Northern boundary. These relocations are required to remove City utilities from the recently expanded Texas Department of Transportation’s (TxDOT) right of way due to TxDOT’s planned expansion of I-35 and the associated access roads. The I- 35E-Mayhill Utility Relocation Project will relocate utilities out of TxDOT’s recently expanded Right of Way between Mayhill and Loop 288. These utility relocation projects will be temporarily funded by the City, but the majority of the work is reimbursable through TxDOT since the expansion of TxDOT roadways created the need to relocate City utilities. As this project is driven by the State’s I-35E Widening Project, TxDOT will reimburse the City for all costs associated with this construction except for the City’s elective betterment where we have upsized from the equivalent 20-inch HDPE to a 24-inch HDPE in anticipation of the City’s continued growth ($782,065.00). The Standard Utility Agreements with TxDOT for both Water and Wastewater relocations, totaling $17,127,281, are expected to come to City Council on November 15, 2022. The agreements will reimburse the City for project-related expenses including Design, Right of Way/Easement Acquisition, and Construction. IH-35E/Mayhill Utility Relocation Project has a total estimated construction cost of $15,008,997.15. This estimate includes a $14,294,283.00 total base bid amount and a five percent (5%) contingency of $714,714.15. This contingency allowance is for the sole use of the City and will be subject to written authorization by the City’s Project Manager and Program Manager and subject to the City’s procurement policy. In an effort to meet TxDOT’s anticipated roadway construction schedule, a Request for Qualifications for utility relocation construction services was solicited using the City’s formal solicitation process. City Council approved a pre-qualified list of professional service firms on June 7, 2022 (Ordinance 22-1145). City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com 701 Invitation for Bids was sent to the three pre-qualified firms. Three (3) bids meeting specifications were received. The lowest bid was received from Mountain Cascade of Texas, LLC. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On June 7, 2022, Council approved RFQ 7968 for a prequalified list of contractor firms (Ordinance 22- 1145). On October 24, 2022, the Public Utilities Board (PUB) recommended this item to the City Council for consideration. RECOMMENDATION Award a contract with Mountain Cascade of Texas, LLC, for the I-35E-Mayhill Utility Relocations Project for the Water/Wastewater Utilities and Capital Projects/Engineering Department, in a not-to-exceed amount of $15,008,997.15. PRINCIPAL PLACE OF BUSINESS Mountain Cascade of Texas, LLC Alvarado, TX ESTIMATED SCHEDULE OF PROJECT Construction will begin upon full execution of the Standard Utility Agreements with TxDOT and has an estimated completion date within 240 calendar days. FISCAL INFORMATION These services will be funded from Water Projects C.O. Fund, account 630471523 and Other Water Projects Funding (TxDOT Reimbursement funds) account 630444517. Requisition #157710 has been entered into the Purchasing software system in the amount of $14,294,283. The budgeted amount for this item is $14,294,283. EXHIBITS Exhibit 1: Agenda Information Sheet Exhibit 2: Bid Tabulation Exhibit 3: LLC Members Exhibit 4: Ordinance and Contract Exhibit 5: Presentation Respectfully submitted: Lori Hewell, 940-349-7100 Purchasing Manager For information concerning this acquisition, contact: Robin Davis, 940-349-7713 Legal point of contact: Marcella Lunn at 940-349-8333. 702 Mountain Cascade of Texas, LLC Oscar Renda Contracting, Inc. S.J. Louis Construction of Texas, Ltd Alvarado, TX Grapevine, TX Mansfield, TX Line #Description Unit Unit Unit 1 Total Base Bid Amount $14,294,283.00 $14,698,835.50 $15,177,714.21 $714,714.15 $15,008,997.15 5% Contingency: Total Contract Amount: Exhibit 2 IFB 7968-001 - Bid Tabulation for the IH-35E/Mayhill Utility Relocation Respondent's Business Name: Principal Place of Business (City and State): 703 704 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH MOUNTAIN CASCADE OF TEXAS, LLC, FOR THE CONSTRUCTION OF THE I-35E- MAYHILL UTILITY RELOCATIONS PROJECT FOR THE WATER/WASTEWATER UTILITIES AND CAPITAL PROJECTS/ENGINEERING DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFQ 7968-001 AWARDED TO MOUNTAIN CASCADE OF TEXAS, LLC, IN THE NOT-TO- EXCEED AMOUNT OF $15,008,997.15). WHEREAS, on June 7, 2022, the City Council approved a pre-qualified professional services list for utility relocation and construction services for various Capital Improvement Projects (Ordinance 22-1145), and t ) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, this p function; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with, and not higher than, the recommended practices and fees published by the professional associa , and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or their designee, is hereby authorized to enter into an agreement with Mountain Cascade of Texas, LLC, to provide professional design services for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager, or their designee, is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. 705 The motion to approve this ordinance was made by __________________________ and seconded by _________________________________. This ordinance was passed and approved by the following vote [___ - ___]: Aye Nay Abstain Absent Mayor Gerard Hudspeth: ______ ______ ______ ______ Vicki Byrd, District 1: ______ ______ ______ ______ Brian Beck, District 2: ______ ______ ______ ______ Jesse Davis, District 3: ______ ______ ______ ______ Alison Maguire, District 4: ______ ______ ______ ______ Brandon Chase McGee, At Large Place 5: ______ ______ ______ ______ Chris Watts, At Large Place 6: ______ ______ ______ _______ PASSED AND APPROVED this the _______ day of ___________________________, 2022. __________________________________ GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY: __________________________________ APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: _________________________________ 706 Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 IFB 7968-001 Cori Power IH-35E/Mayhill Utility Relocation Not Applicable 707 00 52 43 AGREEMENT Page 1 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 SECTION 00 52 43 1 AGREEMENT – UNIT PRICE BID 2 3 THIS AGREEMENT, authorized on ______________is made by and between the City of Denton, 4 a Texas home-rule municipal corporation, acting by and through its duly authorized City Manager, 5 (“City”), and Mountain Cascade of Texas, LLC, authorized to do business in Texas, acting by and 6 through its duly authorized representative, (“Contractor”). 7 City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: 8 Article 1. WORK 9 Contractor shall complete all Work as specified or indicated in the Contract Documents for the 10 Project identified herein. 11 Article 2. PROJECT 12 The project for which the Work under the Contract Documents may be the whole or only a part is 13 generally described as follows: 14 IH-35E/Mayhill Utility Relocation 15 IFB# 7968-001 16 Article 3. CONTRACT PRICE 17 City agrees to pay Contractor for performance of the Work in accordance with the Contract 18 Documents an amount, in current funds, of Fourteen million two hundred ninety-four thousand two 19 hundred eighty-three dollars and 00/100 cents ($14,294,283.00). At the sole option of the City, five 20 (5) percent contingency in the amount of Seven hundred fourteen thousand seven hundred fourteen 21 dollars and 15/100 cents ($714,714.15) may be used for a total not-to-exceed amount of Fifteen 22 million eight thousand nine hundred ninety-seven dollars and 15/100 cents ($15,008,997.15). 23 Article 4. CONTRACT TIME 24 4.1 Time is of the essence. 25 All time limits for Milestones, if any, and Final Acceptance as stated in the Contract 26 Documents are of the essence to this Contract. 27 4.2 Final Acceptance. 28 The Work will be completed for Final Acceptance within 240 Days after the date when the 29 Contract Time commences to run, which is the day indicated in the Notice to Proceed, plus 30 any extension thereof allowed in accordance with Article 11 of the General Conditions. 31 32 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 708 00 52 43 AGREEMENT Page 2 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 4.3 Liquidated Damages: 1 A. Contractor recognizes that time is of the essence to achieve Milestones and Final 2 Acceptance of the Work, and City will suffer financial and other losses if the Work is 3 not completed within the times specified in the Contract Documents. The Contractor 4 also recognizes the delays, expense and difficulties involved in proving, in a legal or 5 arbitration proceeding, the actual loss suffered by the City if the Work related to the 6 Milestones or Final Acceptance is not completed on time. Accordingly, instead of 7 requiring any such proof, Contractor agrees that liquidated damages for delay (but not 8 as a penalty): 9 1. Final Acceptance: If Contractor neglects, refuse, or fails to complete the Work 10 within the time (as duly adjusted pursuant to the Contract) specified in Paragraph 11 4.2, for completion and readiness for Final Payment, Contractor shall pay City Six-12 Hundred and Twenty-Five Dollars ($625.00) for each day that expires after such 13 time, until the date determined by City as stated in the City-issued Letter of Final 14 Acceptance. 15 Article 5. CONTRACT DOCUMENTS 16 5.1 CONTENTS: 17 A. The Contract comprises the entire agreement between City and Contractor concerning the 18 Work and consists of this Agreement and the items set forth below. The Contract 19 Documents consist of all items below other than this Agreement. 20 1. Attachments to this Agreement: 21 a. Proposal Form 22 1) Bid Form 23 2) Unit Price Proposal Form 24 3) Vendor Compliance to State Law Non-Resident Offeror 25 4) State and Federal documents (project specific) 26 b. Current Prevailing Wage Rate Table 27 c. Worker’s Compensation Affidavit 28 d. General Conditions. 29 e. Supplementary Conditions. 30 2. The following located in File 7968-001 at: 31 https://lfpubweb.cityofdenton.com/MaterialsManagement/Browse.aspx?id=19&32 dbid=0&repo=MaterialsManagement&cr=1 33 a. Specifications described in the Table of Contents of the Project’s Contract 34 Documents. 35 b. Drawings. 36 c. Addenda. 37 d. Documentation submitted by Contractor prior to Notice of Award. 38 3. The following which shall be issued after the Effective Date and delivered to the City 39 within ten (10) days of the Effective Date and before beginning Work: 40 a. Payment Bond 41 b. Performance Bond 42 c. Maintenance Bond 43 d. Power of Attorney for the Bonds 44 e. Form 1295 – Certificate of Interested Parties (email to purchasing) 45 f. Insurance Certificate 46 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 709 00 52 43 AGREEMENT Page 3 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 4. Specifications specifically made a part of the Contract Documents by attachment or, 1 if not attached, as incorporated by reference and described in the Table of Contents 2 of the Project’s Contract Documents. 3 5. The following which may be delivered or issued after the Effective Date of the 4 Agreement and, if issued, become an incorporated part of the Contract Documents: 5 a. Notice to Proceed. 6 b. Field Orders. 7 c. Change Orders. 8 d. Letter of Final Acceptance. 9 10 Article 6. INDEMNIFICATION 11 6.1 CONTRACTOR COVENANTS AND AGREES TO INDEMNIFY, HOLD 12 HARMLESS AND DEFEND, AT ITS OWN EXPENSE, THE CITY, ITS OFFICERS, 13 ELECTED AND APPOINTED OFFICIALS, AND EMPLOYEES, FROM AND 14 AGAINST ANY AND ALL CLAIMS FOR PERSONAL INJURY OR DEATH, 15 ARISING OUT OF, OR ALLEGED TO ARISE OUT OF, RELATED TO OR IN 16 CONNECTION WITH THE WORK AND SERVICES TO BE PERFORMED BY THE 17 CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, 18 LICENSEES OR INVITEES UNDER THIS CONTRACT. THIS 19 INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE 20 AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR 21 SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN 22 PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY. THIS 23 INDEMNITY PROVISION IS INTENDED TO INCLUDE, WITHOUT 24 LIMITATION, INDEMNITY FOR ANY AND ALL COSTS, EXPENSES AND 25 LEGAL FEES INCURRED BY THE CITY IN DEFENDING AGAINST SUCH 26 CLAIMS AND CAUSES OF ACTIONS. 27 28 6.2 CONTRACTOR COVENANTS AND AGREES TO INDEMNIFY, HOLD 29 HARMLESS AND DEFEND, AT ITS OWN EXPENSE, THE CITY, ITS OFFICERS, 30 ELECTED AND APPOINTED OFFICIALS, AND EMPLOYEES, FROM AND 31 AGAINST ANY AND ALL CLAIMS FOR, LOSS OF, DAMAGE TO, OR 32 DESTRUCTION OF, PROPERTY OF THE CITY OR OF A THIRD PARTY, 33 ARISING OUT OF, OR ALLEGED TO ARISE OUT OF, RELATED TO OR IN 34 CONNECTION WITH THE WORK AND SERVICES TO BE PERFORMED BY THE 35 CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, 36 LICENSEES OR INVITEES UNDER THIS CONTRACT. THIS 37 INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE 38 AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR 39 SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN 40 PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY. THIS 41 INDEMNITY PROVISION IS INTENDED TO INCLUDE, WITHOUT 42 LIMITATION, INDEMNITY FOR ANY AND ALL COSTS, EXPENSES AND 43 LEGAL FEES INCURRED BY THE CITY IN DEFENDING AGAINST SUCH 44 CLAIMS AND CAUSES OF ACTIONS. 45 46 Article 7. MISCELLANEOUS 47 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 710 00 52 43 AGREEMENT Page 4 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 7.1 Capitalized Terms. 1 Unless otherwise provided herein, capitalized terms used in this Agreement which are 2 defined in Article 1 of the General Conditions will have the meanings indicated in the General 3 Conditions. 4 7.2 Assignment of Contract. 5 This Agreement, including all of the Contract Documents may not be assigned by the 6 Contractor without the advance express written consent of the City. 7 7.3 Successors and Assigns. 8 City and Contractor each binds itself, its partners, successors, assigns and legal 9 representatives to the other party hereto, in respect to all covenants, agreements and 10 obligations contained in the Contract Documents. 11 7.4 Severability. 12 Any provision or part of the Contract Documents held to be unconstitutional, void or 13 unenforceable by a court of competent jurisdiction shall be deemed stricken, and all 14 remaining provisions shall continue to be valid and binding upon City and Contractor. 15 7.5 Venue and Waiver of Sovereign Immunity. 16 This Agreement, including all of the Contract Documents is performable in the State of 17 Texas. Venue shall be in the state district courts of Denton County, Texas. The City’s 18 sovereign immunity is waived only to the extent set forth and in accordance with the 19 provisions of Subchapter I, Chapter 271 of the Texas Local Government Code or as otherwise 20 specifically waived by law. The City does not waive its sovereign immunity to suit in federal 21 court. 22 7.6 Authority to Sign. 23 Contractor hereby certifies that the person signing the Agreement on its behalf is the duly 24 authorized signatory of the Contractor. 25 26 7.7 Prohibition on Contracts with Companies Boycotting Israel. 27 28 Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government 29 Code, the City is prohibited from entering into a contract with a company for goods or 30 services unless the contract contains a written verification from the company that it: (1) 31 does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 32 The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms 33 in Section 808.001 of the Texas Government Code. By signing this contract, Contractor 34 certifies that Contractor’s signature provides written verification to the City that 35 Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of 36 the contract. 37 38 7.8 Prohibition on Contracts with Companies Boycotting Certain Energy Companies. 39 40 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 711 00 52 43 AGREEMENT Page 5 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government 1 Code, City is prohibited from entering into a contract with a company for goods or services 2 unless the contract contains written verification from the company that it (1) does not boycott 3 energy companies; and (2) will not boycott energy companies during the term of the contract. 4 The terms “boycott energy company” and “company” shall have the meanings ascribed to 5 those terms in Section 809.001 of the Texas Government Code. By signing this agreement, 6 Contractor certifies that Contractor’s signature provides written verification to the City 7 that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy 8 companies during the term of the agreement. Failure to meet or maintain the requirements 9 under this provision will be considered a material breach. 10 11 7.9 Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm 12 Trade Associations. 13 14 Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government 15 Code, City is prohibited from entering into a contract with a company for goods or services 16 unless the contract contains written verification from the company that it (1) does not have 17 a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm 18 trade association; and (2) will not discriminate during the term of the contract against a 19 firearm entity or firearm trade association. The terms “discriminate against a firearm entity 20 or firearm trade association,” “firearm entity” and “firearm trade association” shall have the 21 meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By 22 signing this agreement, Contractor certifies that Contractor’s signature provides written 23 verification to the City that Contractor: (1) does not have a practice, policy, guidance, or 24 directive that discriminates against a firearm entity or firearm trade association; and (2) 25 will not discriminate during the term of the contract against a firearm entity or firearm 26 trade association. Failure to meet or maintain the requirements under this provision will be 27 considered a material breach. 28 29 8.0 Prohibition on Contracts with Companies Doing Business with Iran, Sudan, or a Foreign 30 Terrorist Organization. 31 32 Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with 33 companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing 34 this agreement, Contractor certifies that Contractor’s signature provides written 35 verification to the City that Contractor, pursuant to Chapters 2252 and 2270, is not 36 ineligible to enter into this agreement and will not become ineligible to receive payments 37 under this agreement by doing business with Iran, Sudan, or a foreign terrorist 38 organization. Failure to meet or maintain the requirements under this provision will be 39 considered a material breach. 40 41 8.1 Termination Right for Contracts with Companies Doing Business with Certain Foreign-42 Owned Companies. 43 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 712 00 52 43 AGREEMENT Page 6 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 The City of Denton may terminate this Contract immediately without any further liability if 1 the City of Denton determines, in its sole judgment, that this Contract meets the requirements 2 under Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority 3 of stock or other ownership interest of the company is held or controlled by individuals who 4 are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly 5 controlled by the Government of China, Iran, North Korea, Russia, or other designated 6 country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated 7 country. 8 9 8.1 Immigration Nationality Act. 10 11 Contractor shall verify the identity and employment eligibility of its employees who perform 12 work under this Agreement, including completing the Employment Eligibility Verification 13 Form (I-9). Upon request by City, Contractor shall provide City with copies of all I-9 forms 14 and supporting eligibility documentation for each employee who performs work under this 15 Agreement. Contractor shall adhere to all Federal and State laws as well as establish 16 appropriate procedures and controls so that no services will be performed by any Contractor 17 employee who is not legally eligible to perform such services. CONTRACTOR SHALL 18 INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, 19 LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY 20 CONTRACTOR, CONTRACTOR’S EMPLOYEES, SUBCONTRACTORS, 21 AGENTS, OR LICENSEES. City, upon written notice to Contractor, shall have the right 22 to immediately terminate this Agreement for violations of this provision by Contractor. 23 24 8.2 No Third-Party Beneficiaries. 25 26 This Agreement gives no rights or benefits to anyone other than the City and the Contractor 27 and there are no third-party beneficiaries. 28 29 8.3 No Cause of Action Against Engineer. 30 31 Contractor, its subcontractors and equipment and materials suppliers on the Project or their 32 sureties, shall maintain no direct action against the Engineer, its officers, employees, and 33 subcontractors, for any claim arising out of, in connection with, or resulting from the engineering 34 services performed. Only the City will be the beneficiary of any undertaking by the Engineer. 35 The presence or duties of the Engineer's personnel at a construction site, whether as on-site 36 representatives or otherwise, do not make the Engineer or its personnel in any way 37 responsible to Contractor or any other entity for those duties that belong to the City, and do 38 not relieve Contractor or any other entity of its obligations, duties, and responsibilities, 39 including, but not limited to, all construction methods, means, techniques, sequences, and 40 procedures necessary for performing, coordinating and completing all portions of the Work 41 in accordance with the Contract Documents and any health or safety precautions required by 42 such Work. The Engineer and its personnel have no authority to exercise any control over 43 any construction contractor or other entity or their employees in connection with their work 44 or any health or safety precautions. 45 46 SIGNATURE PAGE TO FOLLOW 47 48 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 713 00 52 43 AGREEMENT Page 7 of 7 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-.35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 21, 2021 IN WITNESS WHEREOF, City and Contractor have each executed this Agreement to be effective 1 as of the date subscribed by the City’s City Manager or his designee (“Effective Date”). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 ATTEST: 40 ROSA RIOS, CITY SECRETARY 41 42 43 _______________________________________ 44 45 46 APPROVED AS TO LEGAL FORM: 47 MACK REINWAND, CITY ATTORNEY 48 49 50 _______________________________________ 51 CITY OF DENTON BY: ___________________________________ TITLE: _________________________________ DATE: _________________________________ CONTRACTOR MOUNTAIN CASCADE OF TEXAS, LLC BY: ___________________________________ AUTHORIZED AGENT _______________________________________ NAME _______________________________________ TITLE _______________________________________ PHONE NUMBER _______________________________________ EMAIL ADDRESS _______________________________________ 52 TEXAS ETHICS COMMISSION 53 1295 CERTIFICATE NUMBER 54 THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 2022-938113 Vice-President 925-525-2920 Andrew McCulloch AMcCulloch@mountaincascade.com Director of Capital Projects/City Engineer Capital Projects/Engineering Rebecca Diviney 714 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607715 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607716 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607717 From:Mountain Cascade of Texas, LLC 5340 East US Highway 67 Alvarado, TX 76009 Andrew L. McCulloch PROJ.:IH-35E - Mayhill Utility Relocations 817-783-3094 IFB:7968-001 amcculloch@mountaincascade.com Item No.COD SPEC Description of work BID QTY UOM Unit Price Extended Price UNIT 1 - WATER IMPROVEMENTS 1 01 58 13 0158.001 ‐ Temporary Project Sign 8 EA 1,000.00$ 8,000.00$ 2 01 70 00 0170.001 ‐ Mobilization 1 EA 1,000,000.00$ 1,000,000.00$ 3 31 10 00 3100.001 ‐ Site Preparation 1 EA 90,000.00$ 90,000.00$ 4 31 25 14 3125.010 ‐ Storm Water Pollution Prevention Device Install. 1 EA 50,000.00$ 50,000.00$ 5 31 25 14 3125.011 ‐ Remove Storm Water Polltn Prevention Devices 1 EA 7,000.00$ 7,000.00$ 6 31 37 00 3137.002 ‐ 6" Concrete Riprap* 51 SY 90.00$ 4,590.00$ 7 31 37 00 3137.007 ‐ 6" Common Stone Riprap, Dry* 50 SY 80.00$ 4,000.00$ 8 33 01 12 3301.000 ‐ Joint Bonding and Electrical Isolation 1 EA 1.00$ 1.00$ 9 2229 LF ‐$ 10 7002 LF ‐$ 11 33 14 11 3314.146 ‐ 12" PVC Water Pressure Pipe 1442 LF 350.00$ 504,700.00$ 12 34 14 11 3314.006 ‐ 8" DIP Water Pipe* 135 LF 280.00$ 37,800.00$ 13 33 14 10 3314.142 ‐ 8" PVC Water Pressure Pipe 3259 LF 260.00$ 847,340.00$ 14 33 14 11 3314.133 ‐ 6" PVC Water Pressure Pipe 1075 LF 250.00$ 268,750.00$ 15 33 05 07 3305.028 ‐ 18" Casing Pipe by Other Than Open Cut* 688 LF 800.00$ 550,400.00$ 16 33 05 07 3305.023 ‐ 24" Casing Pipe by Other Than Open Cut* 629 LF 850.00$ 534,650.00$ 17 33 05 07 3305.024 ‐ 30" Casing by Open Cut* 63 LF 500.00$ 31,500.00$ 18 33 05 07 3305.030 ‐ 30" Casing Pipe by Other Than Open Cut* 400 LF 960.00$ 384,000.00$ 19 33 05 07 3305.025 ‐ 36" Casing by Open Cut* 141 LF 600.00$ 84,600.00$ 20 33 05 07 3305.031 ‐ 36" Casing by Other Than Open Cut* 410 LF 1,200.00$ 492,000.00$ 21 551 LF ‐$ 22 463 LF ‐$ 23 33 05 07 3305.097 ‐ 12" PVC Water Carrier Pipe 629 LF 145.00$ 91,205.00$ 24 33 05 07 3305.096 ‐ 8" PVC Water Carrier Pipe 688 LF 110.00$ 75,680.00$ 25 33 14 20 3314.331 ‐ 20" Gate Valve* 3 EA 45,000.00$ 135,000.00$ 26 33 14 20 3314.330 ‐ 16" Gate Valve* 10 EA 8,000.00$ 80,000.00$ 27 33 14 20 3314.329 ‐ 12" Gate Valve* 8 EA 7,500.00$ 60,000.00$ 28 33 14 20 3314.328 ‐ 8" Gate Valve* 16 EA 6,500.00$ 104,000.00$ 29 33 14 20 3314.327 ‐ 6" Gate Valve* 7 EA 5,500.00$ 38,500.00$ 30 33 14 25 3314.34x ‐ 6" x 6" Tapping Sleve and Valve (City Performed)* 2 EA 7,500.00$ 15,000.00$ 31 33 14 25 3314.344 ‐ 8" x 6" Tapping Sleve and Valve (City Performed)* 2 EA 8,000.00$ 16,000.00$ 32 33 14 25 3314.345 ‐ 8" x 8" Tapping Sleve and Valve (City Performed)* 7 EA 9,000.00$ 63,000.00$ 33 33 14 25 3314.348 ‐ 12" x 12" Tapping Sleve & Valve (City Performed)* 2 EA 10,000.00$ 20,000.00$ 34 33 14 25 3314.395 ‐ 20" Water Main Connection with Shutdown 1 EA 27,000.00$ 27,000.00$ 35 33 14 25 3314.39x ‐ 14" Water Main Connection with Shutdown 3 EA 20,000.00$ 60,000.00$ 36 33 14 25 3314.393 ‐ 12" Water Main Connection with Shutdown 3 EA 10,000.00$ 30,000.00$ 37 33 14 25 3314.392 ‐ 8" Water Main Connection with Shutdown 14 EA 8,000.00$ 112,000.00$ 38 33 14 25 3314.391 ‐ 6" Water Main Connection with Shutdown 5 EA 8,000.00$ 40,000.00$ 39 33 05 05 3305.021 ‐ Trench Safety 15060 LF 1.00$ 15,060.00$ 40 32 93 00 3293.015 ‐ Topsoil 671 CY 25.00$ 16,775.00$ 41 32 93 00 3293.017 ‐ Sodding 3962 SY 7.00$ 27,734.00$ 42 32 93 00 3293.016 ‐ Seeding 29050 SY 1.00$ 29,050.00$ 43 32 01 29 3201.013 ‐ Concrete Paving Repair for Utility Trench*4940 SY 200.00$ 988,000.00$ 44 32 01 17 3201.007 ‐ Flexible Paving Repair for Utility Trench*229 SY 130.00$ 29,770.00$ 45 32 12 16 3216.005 ‐ 4" Concrete Sidewalk* 1134 SY 130.00$ 147,420.00$ 46 33 14 30 3314.402 ‐ 2" Water Air Release Valve and Vault* 1 EA 22,000.00$ 22,000.00$ 47 33 14 30 3314.403 ‐ 3" Water Air Release Valve and Vault* 2 EA 30,000.00$ 60,000.00$ 48 34 71 13 3314.407 ‐ Fire Hydrant Assembly* 25 EA 15,000.00$ 375,000.00$ 49 33 14 17 3314.310 ‐ 1" Water Service* 9 EA 1,800.00$ 16,200.00$ 50 33 14 17 3314.312 ‐ 1" Private Water Service Relocation 245 LF 80.00$ 19,600.00$ 51 33 14 17 3314.314 ‐ 1‐1/2" Water Service* 3 EA 2,000.00$ 6,000.00$ 52 33 14 17 3314.318 ‐ 2" Water Service* 6 EA 2,200.00$ 13,200.00$ 53 33 14 17 3314.320 ‐ 2" Private Water Service Relocation* 400 LF 75.00$ 30,000.00$ 54 33 14 18 3314.323 ‐ 4" Water Meter, Vault and Appurtenances* 1 EA 6,500.00$ 6,500.00$ 55 34 71 13 3471.001 ‐ Traffic Control 5 MO 30,000.00$ 150,000.00$ 56 02 41 14 0241.035 ‐ Remove 16" Utility Line 142 LF 68.00$ 9,656.00$ 57 02 41 14 0241.033 ‐ Remove 14" Utility Line 8387 LF 48.00$ 402,576.00$ SECTION 00 42 43 - UNIT PRICE BID FORM SEE ALTERNATE 1 BELOW ‐ provide bid for only ONE ( 9 OR 9a ) SEE ALTERNATE 2 BELOW ‐ provide bid for only ONE (10 OR 10a) SEE ALTERNATE 4 BELOW ‐ provide bid for only ONE (22 OR 22a) BIDDERS APPLICATION - UNIT PRICE BID City of Denton Capital Projects 901-B Texas Street Denton, TX 76209 Attn: Cori Power/Purchasing Dept. SEE ALTERNATE 3 BELOW ‐ provide bid for only ONE (21 OR 21a) DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 718 Item No.COD SPEC Description of work BID QTY UOM Unit Price Extended Price 58 02 41 14 0241.032 ‐ Remove 12" Utility Line 1064 LF 41.00$ 43,624.00$ 59 02 41 14 0241.030 ‐ Remove 8" Utility Line 4490 LF 40.00$ 179,600.00$ 60 02 41 14 0241.029 ‐ Remove 6" Utility Line 426 LF 39.00$ 16,614.00$ 61 02 41 14 0241.014 ‐ Grout Fill 14" Utility Line 320 LF 34.00$ 10,880.00$ 62 02 41 14 0241.013 ‐ Grout Fill 12" Utility Line 799 LF 25.00$ 19,975.00$ 63 02 41 14 0241.011 ‐ Grout Fill 8" Utility Line 72 LF 11.00$ 792.00$ 64 02 41 14 0241.010 ‐ Grout Fill 6" Utility Line 36 LF 9.00$ 324.00$ 65 02 41 14 0241.056 ‐ Remove 6" Water Valve 6 EA 1,000.00$ 6,000.00$ 66 02 41 14 0241.057 ‐ Remove 8" Water Valve 14 EA 1,100.00$ 15,400.00$ 67 02 41 14 0241.059 ‐ Remove 12" Water Valve 8 EA 1,200.00$ 9,600.00$ 68 02 41 14 0241.060 ‐ Remove 14" Water Valve 8 EA 1,250.00$ 10,000.00$ 69 02 41 14 0241.094 ‐ Salvage Fire Hydrant 28 EA 1,000.00$ 28,000.00$ 70 02 41 14 0241.095 ‐ Salvage Small Water Meter 18 EA 1,000.00$ 18,000.00$ 71 02 41 14 0241.096 ‐ Remove Concrete Water Vault 4 EA 1,000.00$ 4,000.00$ 72 02 41 14 0241.053 ‐ Utility Line Plugging (Water) 9 EA 2,500.00$ 22,500.00$ ALTERNATE 1 ‐ PROVIDE PRICING FOR ONLY ONE 9 33 14 10 3314.018 ‐ 20" DIP Water Pipe* 2229 LF ‐$ 9a 33 14 14 3314.226 ‐ 24" HDPE Pressure Pipe, Water 2229 LF 600.00$ 1,337,400.00$ ALTERNATE 2 ‐ PROVIDE PRICING FOR ONLY ONE 10 33 14 10 3314.014 ‐ 16" DIP Water Pipe* 7002 LF ‐$ 10a 33 14 14 3314.222 ‐ 20" HDPE Pressure Pipe, Water 7002 LF 375.00$ 2,625,750.00$ ALTERNATE 3 ‐ PROVIDE PRICING FOR ONLY ONE 21 33 05 07 3305.101 ‐ 20" DIP Water Carrier Pipe* 551 LF ‐$ 21a 33 05 15, 33 14 14 3305.111 ‐ 24" HDPE Water Carrier Pipe 551 LF 220.00$ 121,220.00$ ALTERNATE 4 ‐ PROVIDE PRICING FOR ONLY ONE 22 33 05 07 3305.100 ‐ 16" DIP Water Carrier Pipe* 463 LF ‐$ 22a 33 05 15, 33 14 14 3305.110 ‐ 20" HDPE Water Carrier Pipe 463 LF 180.00$ 83,340.00$ 12,784,276.00$ 73 595 LF ‐$ 74 331 LF ‐$ 75 33 05 07 3305.040 ‐ 48" Casing or Tunnel Liner Plate by Other Than Open 595 LF 1,600.00$ 952,000.00$ 76 33 14 20 3314.3xx ‐ 18" Gate Valve* 1 EA 75,000.00$ 75,000.00$ 77 33 14 25 3314.395 ‐ 18" Water Main Connection with Shutdown 2 EA 20,000.00$ 40,000.00$ 78 33 05 05 3305.021 ‐ Trench Safety 331 LF 1.00$ 331.00$ 79 32 93 00 3293.016 ‐ Seeding 519 SY 1.00$ 519.00$ 80 32 12 16 3216.005 ‐ 4" Concrete Sidewalk* 161 SY 130.00$ 20,930.00$ 81 32 01 29 3201.013 ‐ Concrete Paving Repair for Utility Trench*93 SY 200.00$ 18,600.00$ 82 33 01 12 3301.059 ‐ Manhole Adjustment, Major 1 EA 4,000.00$ 4,000.00$ 83 32 01 29 3305.145 ‐ Concrete Collar* 1 EA 2,000.00$ 2,000.00$ 84 33 01 12 3305.126 ‐ 4' Concrete Manhole* 1 EA 30,000.00$ 30,000.00$ 85 02 41 14 0241.036 ‐ Remove 18" Utility Line 238 LF 110.00$ 26,180.00$ 86 02 41 14 0241.017 ‐ Grout Fill 18" Utility Line 637 LF 37.00$ 23,569.00$ 87 02 41 14 0241.062 ‐ Remove 18" Water Valve 1 EA 1,000.00$ 1,000.00$ 88 02 41 14 0241.053 ‐ Utility Line Plugging (Sanitary Sewer) 3 EA 4,000.00$ 12,000.00$ 89 02 41 14 0241.011 ‐ Grout Fill 8" Utility Line (Sanitary Sewer) 554 EA 17.00$ 9,418.00$ 90 02 41 14 0241.013 ‐ Grout Fill 12" Utility Line (Sanitary Sewer) 151 EA 20.00$ 3,020.00$ 91 02 41 14 0241.050 ‐ Remove 4' Utility Manhole 2 EA 2,800.00$ 5,600.00$ ALTERNATE 5 ‐ PROVIDE PRICING FOR ONLY ONE 73 33 14 11 3314.1xx ‐ 18" PVC Water Pressure Pipe (Purple in Color) 331 LF ‐$ 73a 33 14 14 3314.222 ‐ 20" HDPE Pressure Pipe, Water (Purple in Color) 331 LF 540.00$ 178,740.00$ ALTERNATE 6 ‐ PROVIDE PRICING FOR ONLY ONE 74 33 05 07 3314.1xx ‐ 18" PVC Water Carrier Pipe (Purple in Color) 595 LF ‐$ 74a 33 05 15, 33 14 14 3305.110 ‐ 20" HDPE Water Carrier Pipe 595 LF 180.00$ 107,100.00$ 1,510,007.00$ 14,294,283.00$ IH-35E - Mayhill Utility Relocations IFB: 7968-001 TOTAL BID AMOUNT (Unit I): *All materials shall use domestically manufactured products that are composed predominately of steel and/or iron to incorporate into the permanent installation of the utility facility – in compliance with the Buy America provisions of 23 CFR 635.410 as amended. END BID ITEMS Mountain Cascade of Texas, LLC Unit II - WASTEWATER IMPROVEMENTS SEE ALTERNATE 5 BELOW ‐ provide bid for only ONE (75 OR 75a) SEE ALTERNATE 6 BELOW ‐ provide bid for only ONE (76 OR 76a) TOTAL BID AMOUNT (Unit II): TOTAL PROJECT BID AMOUNT (Units I & II): Page 2 of 2 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 719 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 720 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 721 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 722 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 723 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 724 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 725 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 726 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 727 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 728 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 729 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607730 00 72 00 GENERAL CONDITIONS Page i of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 731 00 72 00 GENERAL CONDITIONS Page ii of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLE OF CONTENTS Page ARTICLE 1 – DEFINITIONS AND TERMINOLOGY ........................................................................... 1 1.01 Defined Terms ......................................................................................................................... 1 1.02 Terminology ............................................................................................................................ 6 ARTICLE 2 – PRELIMINARY MATTERS ............................................................................................ 7 2.01 Delivery of Performance and Payment Bonds; Evidence of Insurance ....................................... 7 2.02 Copies of Documents ............................................................................................................... 7 2.03 Before Starting Construction .................................................................................................... 7 2.04 Preconstruction ConferenceMeeting ......................................................................................... 8 2.05 Public Meeting ......................................................................................................................... 8 2.06 Initial Acceptance of Schedules ................................................................................................ 8 2.07 Electronic Submittals and Transmittals ..................................................................................... 8 ARTICLE 3 – CONTRACT DOCUMENTS: INTENT, REQUIREMENTS, REUSE .............................. 8 3.01 Intent ....................................................................................................................................... 8 3.02 Reference Standards ................................................................................................................. 9 3.03 Reporting and Resolving Discrepancies .................................................................................... 9 3.04 Requirements of the Contract Documents ............................................................................... 10 3.05 Reuse of Documents .............................................................................................................. 10 ARTICLE 4 – COMMENCEMENT AND PROGRESS OF THE WORK.............................................. 11 4.01 Commencement of Contract Time; Notice to Proceed ............................................................. 11 4.02 Starting the Work ................................................................................................................... 11 4.03 Delays in Contractor’s Progress.............................................................................................. 11 ARTICLE 5 – SITE; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS .................................................................................................... 12 5.01 Availability of Lands .............................................................................................................. 12 5.02 Use of Site and Other Areas ................................................................................................... 13 5.03 Subsurface and Physical Conditions ....................................................................................... 14 5.04 Differing Subsurface or Physical Conditions .......................................................................... 15 5.05 Underground Facilities ........................................................................................................... 16 5.06 Hazardous Environmental Conditions at Site .......................................................................... 17 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 732 00 72 00 GENERAL CONDITIONS Page iii of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 6 – BONDS AND INSURANCE .......................................................................................... 18 6.01 Licensed Sureties and Insurers................................................................................................ 18 6.02 Performance, Payment, and Maintenance Bonds ..................................................................... 18 6.03 Certificates of Insurance ......................................................................................................... 19 6.04 Contractor’s Insurance ........................................................................................................... 21 6.05 Acceptance of Bonds and Insurance; Option to Replace.......................................................... 22 ARTICLE 7 – CONTRACTOR’S RESPONSIBILITIES ....................................................................... 22 7.01 Contractor’s Means and Methods of Construction .................................................................. 22 7.02 Supervision and Superintendence ........................................................................................... 22 7.03 Labor; Working Hours ........................................................................................................... 23 7.04 Services, Materials, and Equipment ........................................................................................ 23 7.05 Project Schedule..................................................................................................................... 24 7.06 “Or Equals”............................................................................................................................ 24 7.07 Substitutions .......................................................................................................................... 25 7.08 Concerning Subcontractors and Suppliers ............................................................................... 27 7.09 Wage Rates ............................................................................................................................ 28 7.10 Patent Fees and Royalties ....................................................................................................... 29 7.11 Permits and Utilities ............................................................................................................... 29 7.12 Taxes ..................................................................................................................................... 30 7.13 Laws and Regulations ............................................................................................................ 30 7.14 Record Documents ................................................................................................................. 31 7.15 Safety and Protection ............................................................................................................. 31 7.16 Hazard Communication Programs .......................................................................................... 32 7.17 Emergencies and/or Rectification ........................................................................................... 32 7.18 Submittals .............................................................................................................................. 33 7.19 Continuing the Work .............................................................................................................. 34 7.20 Contractor’s General Warranty and Guarantee ........................................................................ 34 7.21 Indemnification ...................................................................................................................... 35 7.22 Delegation of Professional Design Services ............................................................................ 36 7.23 Right to Audit ........................................................................................................................ 36 7.24 Nondiscrimination .................................................................................................................. 37 ARTICLE 8 – OTHER WORK AT THE SITE ...................................................................................... 37 8.01 Other Work ............................................................................................................................ 37 8.02 Coordination .......................................................................................................................... 38 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 733 00 72 00 GENERAL CONDITIONS Page iv of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 8.03 Legal Relationships ................................................................................................................ 38 ARTICLE 9 – CITY’S RESPONSIBILITIES ........................................................................................ 39 9.01 Communications to Contractor ............................................................................................... 39 9.02 Furnish Data .......................................................................................................................... 39 9.03 Pay When Due ....................................................................................................................... 39 9.04 Lands and Easements; Reports, Tests, and Drawings .............................................................. 39 9.05 Change Orders ....................................................................................................................... 39 9.06 Inspections, Tests, and Approvals ........................................................................................... 39 9.07 Limitations on City’s Responsibilities .................................................................................... 39 9.08 Undisclosed Hazardous Environmental Condition .................................................................. 39 9.09 Compliance with Safety Program ........................................................................................... 39 ARTICLE 10 – CITY’S OBSERVATION DURING CONSTRUCTION .............................................. 40 10.01 City’s Project Manager or Duly Authorized Representative ................................................ 40 10.02 Visits to Site ....................................................................................................................... 40 10.03 Determinations for Work Performed ................................................................................... 40 10.04 Decisions on Requirements of Contract Documents and Acceptability of Work .................. 40 ARTICLE 11 – CHANGES IN THE WORK; CLAIMS; EXTRA WORK ............................................. 41 11.01 Amending and Supplementing the Contract ........................................................................ 41 11.02 Execution of Change Orders ............................................................................................... 41 11.03 Field Orders ....................................................................................................................... 41 11.04 Authorized Changes in the Work – Extra Work .................................................................. 41 11.05 Unauthorized Changes in the Work .................................................................................... 41 11.06 Dispute of Extra Work........................................................................................................ 42 11.07 Contract Claims Process ..................................................................................................... 42 11.08 Change of Contract Price .................................................................................................... 43 11.09 Change of Contract Time.................................................................................................... 44 11.10 Notification to Surety ......................................................................................................... 44 ARTICLE 12 – COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK; PLANS QUANTITY MEASUREMENT ................................................................................................................................ 45 12.01 Cost of the Work ................................................................................................................ 45 12.02 Allowances ........................................................................................................................ 48 12.03 Unit Price Work ................................................................................................................. 48 12.04 Plans Quantity Measurement for Unclassified Excavation or Embankment ......................... 49 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 734 00 72 00 GENERAL CONDITIONS Page v of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 13 – TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK ............................................................................................................................ 50 13.01 Access to Work .................................................................................................................. 50 13.02 Tests, Inspections ............................................................................................................... 50 13.03 Defective Work .................................................................................................................. 51 13.04 Rejecting Defective Work .................................................................................................. 51 13.05 Acceptance of Defective Work ........................................................................................... 52 13.06 Uncovering Work ............................................................................................................... 52 13.07 City May Stop the Work ..................................................................................................... 52 13.08 City May Correct Defective Work ...................................................................................... 53 ARTICLE 14 – PAYMENTS TO CONTRACTOR; COMPLETION; CORRECTION PERIOD............ 53 14.01 Progress Payments ............................................................................................................. 53 14.02 Contractor’s Warranty of Title ............................................................................................ 56 14.03 Partial Utilization ............................................................................................................... 56 14.04 Final Inspection .................................................................................................................. 57 14.05 Final Acceptance ................................................................................................................ 57 14.06 Final Payment .................................................................................................................... 57 14.07 Final Completion Delayed and Partial Retainage Release.................................................... 58 14.08 Waiver of Claims ............................................................................................................... 58 14.09 Correction Period ............................................................................................................... 58 ARTICLE 15 – SUSPENSION OF WORK AND TERMINATION....................................................... 59 15.01 City May Suspend Work .................................................................................................... 59 15.02 City May Terminate for Cause ............................................................................................ 60 15.03 City May Terminate for Convenience ................................................................................. 61 ARTICLE 16 – FINAL RESOLUTION OF DISPUTES ........................................................................ 63 16.01 Methods and Procedures ..................................................................................................... 63 ARTICLE 17 – MISCELLANEOUS ..................................................................................................... 64 17.01 Giving Notice ..................................................................................................................... 64 17.02 Computation of Times ........................................................................................................ 64 17.03 Cumulative Remedies ......................................................................................................... 64 17.04 Limitation of Damages ....................................................................................................... 64 17.05 No Waiver .......................................................................................................................... 65 17.06 Survival of Obligations ....................................................................................................... 65 17.07 Assignment of Contract ...................................................................................................... 65 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 735 00 72 00 GENERAL CONDITIONS Page vi of vi CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 17.08 Successors and Assigns ...................................................................................................... 65 17.09 Headings ............................................................................................................................ 65 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 736 00 72 00 GENERAL CONDITIONS Page 1 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 1 – DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Contract or in other Contract Documents, the terms listed below have the meanings indicated which are applicable to both the singular and plural thereof, and words denoting gender shall include the masculine, feminine and neuter. When used in a context consistent with the definition of a listed-defined term, the term shall have a meaning as defined below whether capitalized or italicized or otherwise. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreement—The written instrument titled “Agreement”, “Agreement – CSP”, or “Agreement – Unit Price Bid” executed by the City and Contractor for the Work, setting forth the name of the Project, Contract Price, Contract Time and the items included in the Contract. 3. Application for Payment—The form acceptable to City which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract. 4. Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Award—Authorization by the City Council for the City to enter into an Agreement. 6. Bid—The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. The term “Bid” shall be defined to include the term “Proposal” in those instances where the City utilizes a Request for Proposal rather than an Invitation for Bid. 7. Bidder—The individual or entity that submits a Bid directly to City. The term “Bidder” shall be defined to include the terms “Proposer” or “Offeror” in those instances where the City utilizes a Request for Proposal rather than an Invitation for Bid. 8. Bidding Documents—The Bidding Requirements and the proposed Contract Documents (including all Addenda). The term “Bidding Documents” shall be defined to include the terms “Proposal Documents” in those instances where the City utilizes a Request for Proposal rather than an Invitation for Bid. 9. Bidding Requirements—The Advertisement or Invitation to Bid, Instructions to Bidders, Bid Bond or other Bid security, if any, the Bid Form, and the Bid with any attachments. The term “Bidding Requirements” shall be defined to include the terms “Proposal Requirements” in those instances where the City utilizes a Request for Proposal rather than an Invitation for Bid and will include the Request for Proposal or Invitation to Offerors, Instructions to Offerors, Offerors Bond or other Proposal security, if any, the Proposal Form, and the Proposal with any attachments. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 737 00 72 00 GENERAL CONDITIONS Page 2 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 10. Business Day—A day that the City conducts normal business, generally Monday through Friday, except for federal or state holidays observed by the City. 11. Calendar Day—A day consisting of 24 hours measured from midnight to the next midnight. 12. Change Order—A document which is prepared by the Contractor or City, approved by the City, and signed by Contractor and City, authorizing an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Time, issued on or after the Effective Date of the Agreement. 13. City—The City of Denton is, a Texas home-rule municipal corporation acting by its City Council through its City Manager or his or her designee. 14. City Attorney—The officially appointed City Attorney of the City of Denton or his or her designee. 15. City Council—The duly elected and qualified governing body of the City of Denton. 16. City Manager—The officially appointed authorized City Manager of the City of Denton. 17. Contract—The entire and integrated set of written instruments between the City and Contractor concerning the Work comprised of the Agreement and all Contract Documents, which written instruments supersede all prior negotiations, representations, or agreements, whether written or oral, concerning the Work. 18. Contract Claim—A demand or assertion by City or Contractor seeking an adjustment of Contract Price or Contract Time, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Contract Claim. 19. Contract Documents—Those items so designated as “Contract Documents.” in the Agreement at Paragraph 5.1.A. Approved Submittals, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 20. Contract Price—The moneys payable by City to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of Paragraph 12.03 in the case of Unit Price Work). The Contract Price does not include any “Incentive”, if applicable. 21. Contract Time—The number of days or the dates stated in the Agreement to: (a) achieve Milestones, if any and (bb) complete the Work so that it is ready for Final Acceptance. 22. Contractor—The individual or entity with whom City has entered into the Agreement. 23. Cost of the Work—See Paragraph 12.01 of these General Conditions for definition. 24. Damage Claims—A demand for money or services arising from the Project or Site from a third party, City or Contractor exclusive of a Contract Claim. 25. Day or day—A day, unless otherwise defined, shall mean a Calendar Day. 26. Drawings—The part of the Contract Documents prepared or approved by an Engineer that graphically shows the scope, extent, and character of the Work to be performed by Contractor. Submittals, as defined, are not considered Drawings as so defined here. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 738 00 72 00 GENERAL CONDITIONS Page 3 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 27. Effective Date of the Agreement—The date, indicated in the Agreement, on which it becomes effective,, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the City. 28. Electronic Document—Any Project-related correspondence, attachments to correspondence, text, data, documents, drawings, information, or graphics, including but not limited to Shop Drawings and other Submittals, that are in an electronic or digital format. 29. Electronic Means—Electronic mail (email), upload/download from a secure Project website, or other communications methods that allow: (a) the transmission or communication of Electronic Documents; (b) the documentation of transmissions, including sending and receipt; (c) printing of the transmitted Electronic Document by the recipient; (d) the storage and archiving of the Electronic Document by sender and recipient; and (e) the use by recipient of the Electronic Document for purposes permitted by the Contract. Electronic Means does not include the use of text messaging, or of Facebook, Twitter, Instagram, or similar social media services for transmission of Electronic Documents. 30. Engineer—The licensed professional engineer or engineering firm registered in the State of Texas performing professional services for the City. 31. Extra Work—Additional work made necessary by City-approved changes or alterations to the Contract Documents. Extra Work shall be part of the Work. 32. Field Order—A written directive issued by City that requires changes in the Work but does not involve a change to the Contract Price, Contract Time, or Drawings, Plan, or Shop Drawings. 33. Final Acceptance—The written notice given by the City to the Contractor that the Work specified in the Contract Documents has been completed to the satisfaction of the City. 34. Final Inspection—The inspection performed by the City to determine whether the Contractor has completed each and every part or appurtenance of the Work fully, entirely, and in conformance with the Contract Documents. 35. General Requirements—Sections of The information set forth in “Division 101 – General Requirements” of the Standard Construction Specification Documents. 36. Hazardous Environmental Condition—The presence at the Site of Asbestos, P C B s , Petroleum, Hazardous Waste, Radioactive Material, or any other substance, product, waste or materials, in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto. 37. Hazardous Waste—Any solid waste listed as hazardous or which possesses one or more hazardous characteristics as defined in applicable Laws and Regulations. 38. Incidental or incidental—Work items that the Contractor is not paid for directly, but costs for which are included under the various bid items of the Project. 39. Laws and Regulations—Any and all applicable laws, statutes, rules, regulations, ordinances, codes, and binding decrees, resolutions, and orders of any and all DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 739 00 72 00 GENERAL CONDITIONS Page 4 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 governmental bodies, agencies, authorities, and courts having jurisdiction over the Site or any portion or part of the Work to be performed. 40. Liens—Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 41. Major Item—An item of work included in the Contract Documents that has a total cost equal to or greater than 5% of the original Contract Price. 42. Milestone—A principal event specified in the Contract Documents relating to the performance of an identified portion of the Work by an intermediate Contract Time prior to Final Acceptance of the Work. 43. Notice of Award—The written notice by City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed in such notice, City will sign and deliver the Agreement. 44. Notice to Proceed—A written notice given by City to Contractor fixing the date on which the Contract Time will commence to run and on which Contractor shall start to perform the Work specified in Contract Documents. 45. PCBs—Polychlorinated biphenyls. 46. Petroleum—Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), and including but not limited to oil, fuel oil, oil sludge, oil refuse, gasoline, diesel fuel, kerosene, and oil mixed with other non-Hazardous Waste and crude oils. 47. Plans—This term will have the same definition of as “Drawings”. 48. Project —The Work to be performed under the Contract. 49. Project Manager—The authorized representative of the City who will be assigned to the Project. 50. Project Manual—The documentary information prepared for bidding or proposing and furnishing the Work. 51. Project Schedule—A schedule, prepared and maintained by Contractor, in accordance with the General Requirements, describing the sequence and duration of the activities comprising Contractor’s plan to achieve each Milestone and accomplish the Work within the Contract Time. 52. Public Meeting—An announced meeting conducted by the City to facilitate public participation and to assist the public in gaining an informed view of the Project. 53. Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and that establish the standards by which such portion of the Work will be judged. 54. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements toto support scheduled performance of related construction activities. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 740 00 72 00 GENERAL CONDITIONS Page 5 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 55. Schedule of Values—A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor’s Applications for Payment. 56. Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or information that are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. Shop Drawings, whether approved or not, are not Drawings and are not Contract Documents. 57. Site—Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights-of-way, permits, and easements for access thereto, and such other lands furnished by City which are designated for the use of Contractor. 58. Specifications or Technical Specifications —The part of the Contract that consists of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable to the Work. Specifications may be specifically made a part of the Contract Documents by attachment or, if not attached, may be incorporated by reference as indicated in the Table of Contents (Section 00 00 00) of the Project. 59. Subcontractor—An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 60. Submittal—All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to the City to illustrate some portion of the Work. 61. Subsidiary or subsidiary—These terms will have the same definition as “Incidental. or incidental”. 62. Successful Bidder—The Bidder to whom City issues a Notice of Award. The term “Bidder” shall be defined to include the terms “Proposer” or “Offeror” in those instances where the City utilizes a Request for Proposal rather than an Invitation for Bid and is the Proposer or Offeror submitting the proposal or offer that provides the best value to the City and to whom the City issues a Notice of Award. 63. Superintendent—The representative of the Contractor who is available at all times and able to receive instructions from the City and to act for the Contractor. 64. Supplementary Conditions—The part of the Contract set forth at Division 00 73 00 that amends or supplements these General Conditions. 65. Supplier—A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or a Subcontractor. 66. Underground Facilities—All underground lines, pipelines, conduits, ducts, encasements, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or systems at the Site, including but not limited to those facilities or systems that produce, transmit, distribute, or convey telephone or other communications, cable television, fiber optic transmissions, power, electricity, light, heat, gases, oil, crude oil products, liquid DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 741 00 72 00 GENERAL CONDITIONS Page 6 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 petroleum products, water, steam, waste, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 67. Unit Price Work—Work for which the Contract Price is determined by multiplying the unit price for the item by the estimated quantity of the item. 68. Weekend Working Hours—Those hours between 8:00 a.m. and 8:30 p.m. on Saturday, and between 1:00 p.m. and 8:30 p.m. on Sunday or on a federal or state holiday observed by the City, as approved in advance by the City for performing Work. 69. Work—The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction including any Change Order or Field Order,, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 70. Working Day—Defined as a Business Day but excluding any days that weather or other conditions beyond the reasonable control of the Contractor prevents the performance of the principal unit of work underway for a continuous period of not less than 7 hours between 7:00 a.m. and 8:00 p.m. 1.02 Terminology A. The words and terms discussed in Paragraphs 1.02.B, C, D, and E are not defined terms that require initial capital letters, but, when used in the Bidding Requirements or Contract, have the indicated meaning. B. Intent of Certain Terms or Adjectives: The Contract includes the terms “as allowed,” “as approved,” “as ordered,” “as directed” or terms of like effect or import to authorize an exercise of judgment by CityCity. In addition, the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” “satisfactory,” or adjectives of like effect or import are used to describe an action or determination of City as to the Work. It is intended that such exercise of judgment, action, or determination will be to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). C. Defective: The word “defective,” when modifying the word “Work,” refers to Work that is unsatisfactory, faulty, or deficient in that it: 1. does not conform to the Contract Documents; or 2. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or 3. has been damaged prior to City’s written notice of Final Acceptance. D. Furnish, Install, Perform, Provide 1. The word “furnish,” when used in connection with services, materials, or equipment, means to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 742 00 72 00 GENERAL CONDITIONS Page 7 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 2. The word “install,” when used in connection with services, materials, or equipment, means to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, means to execute, carry out, furnish and install said services, materials, or equipment complete and ready for intended use. 4. If the Contract Documents establish an obligation of Contractor with respect to specific services, materials, or equipment, but do not expressly use any of the four words “furnish,” “install,” “perform,” or “provide,” then Contractor shall furnish and install said services, materials, or equipment complete and ready for intended use. E. Unless stated otherwise in the Contract, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract in accordance with such recognized meaning. ARTICLE 2 – PRELIMINARY MATTERS 2.01 Delivery of Performance and Payment Bonds; Evidence of Insurance A. Performance and Payment Bonds: When Contractor delivers the signed counterparts of the Agreement to City, Contractor shall also deliver to City the performance bond , payment bond and maintenance bond that comply with the provisions of Chapter 2253 of the Texas Government Code. Work will not be allowed to begin until the performance and payment bonds have been provided by the Contractor to the City. B. Evidence of Contractor’s Insurance: When Contractor delivers the signed counterparts of the Agreement to City, Contractor shall also deliver to City, with copies to each additional insured (as identified in the Contract), the certificates, endorsements, and other evidence of insurance required to be provided by Contractor in accordance with Article 6. Work will not be allowed to begin until the evidence of insurance has been provided by the Contractor to the City. 2.02 Copies of Documents A. City shall furnish to Contractor one (1) original executed copy and one (1) electronic copy of the Contract, and three (3) additional copies of the Drawings. Additional printed copies will be furnished upon request at the cost of reproduction. 2.03 Before Starting Construction Baseline starting Work, Contractor shall submit for review by City the following in accordance with the Contract Documents: A. Baseline Schedules in accordance with General Requirements, Section 01 32 16. B. Preliminary Schedule of Submittals. C. Preliminary Schedule of Values: For lump sum contracts, a Schedule of Values for all of the Work that includes quantities and prices of items that when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 743 00 72 00 GENERAL CONDITIONS Page 8 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 2.04 Preconstruction Meeting A. Before any Work at the Site is started, the Contractor shall attend a Preconstruction Meeting as specified in Section 01 31 19. 2.05 Public Meeting A. Contractor may not mobilize any equipment, materials, or resources to the Site prior to Contractor attending the Public Meeting as scheduled by the City. 2.06 Initial Acceptance of Schedules A. No progress payment shall be made to Contractor until acceptable Project Schedules are submitted to City in accordance with the Contract Documents. 2.07 Electronic Submittals and Transmittals A. Except as otherwise stated elsewhere in the Contract, the City and Contractor may send, and shall accept, Electronic Documents transmitted by Electronic Means. B. If the Contract does not establish protocols for Electronic Means, then City and Contractor shall jointly develop such protocols. C. Subject to any governing protocols for Electronic Means, when transmitting Electronic Documents by Electronic Means, the transmitting party makes no representations as to long-term compatibility, usability, or readability of the Electronic Documents resulting from the recipient’s use of software application packages, operating systems, or computer hardware differing from those used in the drafting or transmittal of the Electronic Documents. ARTICLE 3 – CONTRACT DOCUMENTS: INTENT, REQUIREMENTS, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one Contract Document is as binding as if required by all. B. It is the intent of the Contract to describe a functionally complete Project to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to City. C. City will issue clarifications and interpretations of the Contract Documents as provided herein. D. The Specifications may vary in form, forma and style. Some Specification sections may be written in varying degrees of streamlined or declarative style, and some sections may be relatively narrative by comparison. Omission of such words and phrases as “the Contractor shall,” “in conformity with,” “as shown,” or “as specified” are intentional in streamlined sections. Omitted words and phrases shall be supplied by inference. Similar types of provisions may appear in various parts of a section or articles within a part depending on the format of the section. The Contractor shall not take advantage of any variation of form, format or style in making Contract Claims or Damage Claims. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 744 00 72 00 GENERAL CONDITIONS Page 9 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 E. The cross-referencing of Specification sections under the subparagraph heading “Related Sections include but are not necessarily limited to:” and elsewhere within each Specification section is provided as an aid and convenience to the Contractor. The Contractor shall not rely on the cross-referencing provided and shall be responsible to coordinate the entire Work under the Contract Documents and provide a complete Project whether or not cross-referencing is provided in each section or whether the cross-referencing is complete or accurate. 3.02 Reference Standards A. Standards Specifications, Codes, Laws and Regulations 1. Reference in the Contract Documents to standard specifications, manuals, reference standards, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, means the standard specification, manual, reference standard, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard specification, manual, reference standard, or code, and no instruction of a Supplier, will be effective to change the duties or responsibilities of CityCity, Contractor, or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to City or any of its officers, elected or appointed officials, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies 1. Contractor’s Verification of Figures and Field Measurements: Before undertaking each part of the Work, Contractor shall carefully study the Contract Documents, and check and verify pertinent figures and dimensions therein, particularly with respect to applicable field measurements, and conditions. Contractor shall promptly report in writing to City any conflict, error, ambiguity, or discrepancy that Contractor discovers, or has actual knowledge of, and shall obtain a written interpretation or clarification from City before proceeding with any Work affected thereby. 2. Contractor’s Review of Contract Documents: If, before or during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation, (b) actual field conditions, (c) any standard specification, manual, reference standard, or code, or (d) any instruction of any Supplier, then Contractor shall promptly report it to City in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 7.1717) until the conflict, error, ambiguity, or discrepancy is resolved, by a clarification or interpretation by City, or by an amendment or supplement to the Contract issued pursuant to Paragraph 11.01. 3. Contractor shall not be liable to City for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 745 00 72 00 GENERAL CONDITIONS Page 10 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 B. Resolving Discrepancies 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents take precedence in resolving any conflict, error, ambiguity, or discrepancy between such provisions of the Contract Documents and: a. the provisions of any standard specification, manual, reference standard, or code, or the instruction of any Supplier; or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 2. In case of discrepancies, figured dimensions shall govern over scaled dimensions, Drawings shall govern over Specifications, and Supplementary Conditions shall govern over General Conditions and Specifications. 3.04 Requirements of the Contract Documents A. During the performance of the Work and until final payment, Contractor shall submit to the City in writing all matters in question concerning the requirements of the Contract Documents (sometimes referred to as requests for information or interpretation—RFIs), or relating to the acceptability of the Work under the Contract Documents, as soon as possible after such matters arise. City will be the interpreter of the requirements of the Contract Documents, and judge of the acceptability of the Work. B. City will, with reasonable promptness, render a written clarification, interpretation, or decision on the issue submitted, or initiate an amendment or supplement to the Contract Documents. City’s written clarification, interpretation, or decision will be final and binding on Contractor, unless Contractor appeals by filing a Contract Claim. 3.05 Reuse of Documents A. Contractor and its Subcontractors and Suppliers shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or its consultants, including electronic media versions, or reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of CityCity and specific written verification or adaptation by Engineer; or 2. have or acquire any title or ownership rights in any other Contract Documents, reuse any such Contract Documents for any purpose without City’s express written consent, or violate any copyrights pertaining to such Contract Documents. B. The prohibitions of this Paragraph 3.05 05 will survive final payment, or termination of the Contract. Nothing herein precludes Contractor from retaining copies of the Contract Documents for record purposes. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 746 00 72 00 GENERAL CONDITIONS Page 11 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 4 – COMMENCEMENT AND PROGRESS OF THE WORK 4.01 Commencement of Contract Time; Notice to Proceed A. The Contract Time will commence to run on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Contract. 4.02 Starting the Work A. Contractor shall start to perform the Work on the date when the Contract Time commences to run. No Work may be done at the Site prior to the date on which the Contract Time commences to run. 4.03 Delays in Contractor’s Progress A. If Contractor is delayed, City shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. The City shall be liable only to the extent allowed by the provisions of the Contract and as allowed by Subchapter I, Chapter 271 of the Texas Local Government Code. B. Contractor shall not be entitled to an adjustment in Contract Price or Contract Time for delay, disruption, or interference caused by or within the control of Contractor. Delay, disruption, and interference attributable to and within the control of a Subcontractor or Supplier shall be deemed to be within the control of Contractor. C. The Contractor shall receive no compensation for delays or hindrances to the Work, except when direct and unavoidable extra cost to the Contractor is caused by the failure of the City to provide information or material, if any, that the Contract specifies is to be furnished by the City. D. If Contractor’s performance or progress is delayed, disrupted, or interfered with by unanticipated causes not the fault of and beyond the control of City, Contractor, and those for whom they are responsible, then Contractor shall be entitled to an equitable adjustment in Contract Time. Such an adjustment will be Contractor’s sole and exclusive remedy for the delays, disruption, and interference described in this Paragraph 4.03. D. The Contractor is responsible for the prompt submission of a request for an adjustment to the Contract Time under this Paragraph to the City. Causes of delay, disruption, or interference that may give rise to an adjustment in Contract Time under this Paragraph include but are not limited to the following: 1. Severe and unavoidable natural catastrophes such as fires, floods, epidemics, and earthquakes; 2. Abnormal weather conditions; 3. Acts or failures to act of third-party utility owners or other third-party entities (other than those third-party utility owners or other third-party entities performing other work at or adjacent to the Site as arranged by or under contract with City, as contemplated in Article 8); and DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 747 00 72 00 GENERAL CONDITIONS Page 12 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 4. Acts of war or terrorism. E. Contractor’s entitlement to an adjustment of Contract Time or Contract Price is limited as follows: 1. Contractor’s entitlement to an adjustment of the Contract Time is conditioned on the delay, disruption, or interference adversely affecting an activity on the critical path to completion of the Work, as of the time of the delay, disruption, or interference. 2. Contractor shall not be entitled to an adjustment in Contract Price for any delay, disruption, or interference if such delay is concurrent with a delay, disruption, or interference caused by or within the control of Contractor. Such a concurrent delay by Contractor shall not preclude an adjustment of Contract Time to which Contractor is otherwise entitled. 3. Adjustments of Contract Time or Contract Price are subject to the provisions of Article 11. F. Each Contractor request or Change Order seeking an increase in Contract Time or Contract Price must be supplemented by supporting data that sets forth in detail the following: 1. The circumstances that form the basis for the requested adjustment; 2. The date upon which each cause of delay, disruption, or interference began to affect the progress of the Work; 3. The date upon which each cause of delay, disruption, or interference ceased to affect the progress of the Work; 4. The number of days’ increase in Contract Time claimed as a consequence of each such cause of delay, disruption, or interference; and 5. The impact on Contract Price, in accordance with the provisions of Paragraph 11.08. 6. Contractor shall also furnish such additional supporting documentation as City may require including, where appropriate, a revised Project Schedule indicating all the activities affected by the delay, disruption, or interference, and an explanation of the effect of the delay, disruption, or interference on the critical path to completion of the Work. G. Delays, disruption, and interference to the performance or progress of the Work resulting from the existence of a differing subsurface or physical condition, an Underground Facility that was not shown or indicated by the Contract Documents, or not shown or indicated with reasonable accuracy, and those resulting from undisclosed Hazardous Environmental Conditions, are governed by Article 5, together with the provisions of Paragraphs 4.03.F and 4.03.G. ARTICLE 5 – SITE; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS 5.01 Availability of Lands A. City shall furnish the Site. City shall notify Contractor in writing of any encumbrances or restrictions not of general application but specifically related to use of the Site with which DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 748 00 72 00 GENERAL CONDITIONS Page 13 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Contractor must comply in performing the Work. City will be responsible for obtaining any necessary easements for permanent structures or permanent changes in existing facilities. 1. The City has obtained or anticipates acquisition of and/or access to right-of-way, and/or easements. Any outstanding right-of-way and/or easements are anticipated to be acquired in accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding right-of-way, and/or easements. 2. Unless otherwise specified in the Contract Documents, the City has or anticipates moving and/or relocating utilities, and obstructions to the Site. Any outstanding movement or relocation of utilities or obstructions is anticipated in accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding utilities or obstructions to be moved and/or relocated by others. B. Upon reasonable written request of Contractor, City shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed. C. Contractor shall provide for any additional lands and access thereto not included in the Site that may be required for construction facilities or storage of materials and equipment. The cost of such shall be part of the Contract Price. 5.02 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. Contractor shall confine construction equipment, temporary construction facilities, the storage of materials and equipment, worker car parking and the operations of workers to the Site, to adjacent areas that Contractor has arranged to use through construction easements or otherwise, and to other adjacent areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and such other adjacent areas with worker car parking, construction equipment or other materials or equipment. Contractor shall assume full responsibility for (a) damage to the Site; (b) damage to any such other adjacent areas used for Contractor’s operations; (c) damage to any other adjacent land or areas, or to improvements, structures, utilities, or similar facilities located at such adjacent lands or areas; and (d) for injuries, including death, and damage to or losses of property sustained by the owners or occupants of any such land or areas; provided that such damage, losses, injuries or deaths arose out of or result from the performance of the Work or arose out of or resulted from any other actions or conduct of the Contractor or those for whom Contractor is responsible. 2. At any time when, in the judgment of the City, the Contractor has obstructed, closed, or is carrying on operations in a portion of a street, right-of-way, or easement greater than is necessary for proper execution of the Work, the City may require the Contractor to reduce the area impacted to only that necessary for proper execution of the Work and/or to finish the section on which operations are in progress before work is commenced on any additional area of the Site. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 749 00 72 00 GENERAL CONDITIONS Page 14 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 3. Construction equipment, spoil materials, supplies, forms, buildings, labs, or equipment and supply storage buildings, or any other item that may be transported by flood flows, shall not be stored within existing federal floodways during the course of the Work. 4. Should any Damage Claim be made by any such owner or occupant adversely impacted because of the performance of the Work, Contractor shall promptly attempt to resolve the Damage Claim. 5. PURSUANT TO PARAGRAPH 7.21, CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, COSTS, LOSSES, AND DAMAGES ARISING OUT OF OR RELATING TO ANY CLAIM OR ACTION, LEGAL OR EQUITABLE, BROUGHT BY ANY SUCH ADVERSELY IMPACTED OWNER OR OCCUPANT AGAINST CITY. B. Removal of Debris During Performance of the Work: During the progress of the Work the Contractor shall keep the Site and other adjacent areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris will conform to applicable Laws and Regulations. C. Site Maintenance Cleaning: If 24 hours after written notice is given to the Contractor that the clean-up at the Site is insufficient or occurring in a manner unsatisfactory to the City, the Contractor fails to correct the unsatisfactory condition and/or procedures, the City may take such direct action as the City deems appropriate to correct the clean-up deficiencies cited to the Contractor in the written notice, and the costs of such direct corrective action, plus 25 % of such costs, shall be deducted from the monies due or to become due to the Contractor under the Contract. D. Final Site Cleaning: Prior to Final Acceptance of the Work, Contractor shall clean the Site and the Work and make it ready for utilization by City and any adjacent property owners, if applicable. At the completion of the Work, Contractor shall remove from the Site and adjacent areas all tools, appliances, construction equipment and machinery, surplus materials, waste materials, rubbish and other debris and shall restore to original condition or better all areas impacted or disturbed by the Work. E. Loading of Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent structures or land to stresses or pressures that will endanger them. 5.03 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. Those reports known to City of explorations and tests of subsurface conditions at or contiguous to the Site; and 2. Those drawings known to City of existing physical conditions at or contiguous to the Site, including those drawings known to City depicting existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities.). B. Underground Facilities: Underground Facilities are shown or indicated on the Drawings, pursuant to Paragraph 5.05, and not in the drawings referred to in Paragraph 5.03.A. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 750 00 72 00 GENERAL CONDITIONS Page 15 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Information and data regarding the presence or location of Underground Facilities are not intended to be categorized, identified, or defined as technical data. C. Reliance by Contractor on Technical Data: Contractor is provided certain technical data identified in the Supplementary Conditions with respect to such reports and drawings for its use, but the City does not warrant or guarantee the accuracy of the information, and such information including reports and drawings are not Contract Documents. Contractor may not make any Contract Claim against City, or any of theirits officers, elected or appointed officials, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness or accuracy of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. the contents of other Site-related documents made available to Contractor, such as record drawings from other projects at or adjacent to the Site, or City’s archival documents concerning the Site; or 4. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information. 5.04 Differing Subsurface or Physical Conditions A. Notice by Contractor: If Contractor believes that any subsurface or physical condition that is uncovered or revealed at the Site either: 1. is of such a nature as to establish that any “technical data” is materially inaccurate; or 2. is of such a nature as to require a change in the Contract Documents; or 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 7.17), notify City in writing about such condition. B. Possible Price and Time Adjustments 1. Contractor shall not be entitled to any adjustment in the Contract Price or Contract Time if: a. Contractor knew of the existence of such condition at the time Contractor made a final commitment to City with respect to Contract Price and Contract Time by the submission of a Bid or becoming bound under the Contract; or DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 751 00 72 00 GENERAL CONDITIONS Page 16 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 b. The existence of such condition reasonably could have been discovered or revealed as a result of the examination of the Contract Documents or the Site; or c. Contractor failed to give the written notice required by Paragraph 5.04.A. C. Underground Facilities; Hazardous Environmental Conditions: Paragraph 5.05 governs rights and responsibilities regarding the presence or location of Underground Facilities. Paragraph 5.06 governs rights and responsibilities regarding Hazardous Environmental Conditions. The provisions of Paragraphs 5.03 and 5.04 are not applicable to the presence or location of Underground Facilities, or to Hazardous Environmental Conditions. 5.05 Underground Facilities A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the Site is based on information and data furnished to City or Engineer by the owners of such Underground Facilities, including City, or by others, unless it is otherwise expressly provided in the Supplementary Conditions:: 1. City and Engineer shall not be responsible for the accuracy or completeness of any such information or data provided by others; and 2. the cost of all of the following are included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all information and data; b. verifying the actual location of those Underground Facilities shown or indicated in the Contract Documents as being within the area affected by the Work, by exposing such Underground Facilities during the course of construction; c. coordination and adjustment of the Work with the owners (including City) of such Underground Facilities, during construction; and d. the safety and protection of all existing Underground Facilities at the Site, and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated: 1. If an Underground Facility that is uncovered or revealed at the Site was not shown or indicated on the Drawings or otherwise indicated in the Contract Documents, or was not shown or indicated on the Drawings or in the Contract Documents with reasonable accuracy, then Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 7.17), identify the owner of such Underground Facility and give notice to that owner and to City. Contractor shall be responsible for the safety and protection of such discovered Underground Facility. 2. If City concludes that a change in the Contract Documents is required, a Change Order may be issued to reflect and document such consequences, subject to the provisions of Article 11. 3. Verification of existing utilities, structures, and service lines shall include notification of all utility companies a minimum of 48 hours in advance of construction including exploratory excavation if necessary. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 752 00 72 00 GENERAL CONDITIONS Page 17 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 5.06 Hazardous Environmental Conditions at Site A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports known to City relating to Hazardous Environmental Conditions that have been identified at the Site; or 2. drawings known to City relating to Hazardous Environmental Conditions that have been identified at the Site. B. Reliance by Contractor on Technical Data: Contractor is provided certain technical data identified in the Supplementary Conditions with respect to such reports and drawings for its use, but the City does not warrant or guarantee the accuracy of the information, and such information including reports and drawings are not Contract Documents. Contractor may not make any Contract Claim against City, or any of its officers, elected or appointed officials, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness or accuracy of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. the contents of other Site-related documents made available to Contractor, such as record drawings from other projects at or adjacent to the Site, or City’s archival documents concerning the Site; or 4. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information. C. Contractor shall not be responsible for a Hazardous Environmental Condition uncovered or revealed at the Site if such Hazardous Environmental Condition was not shown or indicated in Drawings or Specifications or identified if the removal or remediation of such Hazardous Environmental Condition was not identified in the Contract Documents to be within the scope of the Work. Contractor shall be responsible for a Hazardous Environmental Condition created by the actions of or with any materials brought to the Site by Contractor, Subcontractors, Suppliers or anyone else for whom Contractor is responsible and the costs associated with the same. D. If Contractor encounters, uncovers, or reveals a Hazardous Environmental Condition whose removal or remediation is not expressly identified in the Contract Documents as being within the scope of the Work, or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, then Contractor shall immediately: (1) secure or otherwise isolate such condition; (2) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 7.17); and (3) notify City (and promptly thereafter confirm such notice in writing). City may consider the necessity to retain a qualified expert to evaluate such condition or take corrective action, if any. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 753 00 72 00 GENERAL CONDITIONS Page 18 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 E. Contractor shall not be required to resume Work in connection with a Hazardous Environmental Condition identified pursuant to Paragraph 5.06.D or in any affected area until after City has obtained any required permits related thereto, and delivered written notice to Contractor either (1) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work, or (2) specifying any special conditions under which such Work may be resumed. F. If, after receipt of such written notice, Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then City may order the portion of the Work that is in the area affected by such condition to be deleted from the Work and the Contract Price. City may have such deleted portion of the Work performed by City’s own forces or others. G. TO THE FULLEST EXTENT PERMITTED BY LAWS AND REGULATIONS, CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS CITY, AND ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, DIRECTORS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS, AND SUBCONTRACTORS OF EACH AND ANY OF THEM, FROM AND AGAINST ALL CLAIMS, COSTS, LOSSES, AND DAMAGES (INCLUDING BUT NOT LIMITED TO ALL FEES AND CHARGES OF ENGINEERS, ARCHITECTS, ATTORNEYS, AND OTHER PROFESSIONALS AND ALL COURT ARBITRATION OR OTHER DISPUTE RESOLUTION COSTS) FOR PERSONAL INJURY, DEATH OR PROPERTY DAMAGE ARISING OUT OF OR RELATING TO A HAZARDOUS ENVIRONMENTAL CONDITION CREATED BY CONTRACTOR OR BY ANYONE FOR WHOM CONTRACTOR IS RESPONSIBLE. NOTHING IN THIS PARAGRAPH 5.06.CityG OBLIGATES CONTRACTOR TO INDEMNIFY ANY INDIVIDUAL OR ENTITY FROM AND AGAINST THE CONSEQUENCES OF THAT INDIVIDUAL’S OR ENTITY’S OWN NEGLIGENCE. H. The provisions of Paragraphs 5.03, 5.04, and 5.05 do not apply to the presence of a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 6 – BONDS AND INSURANCE 6.01 Licensed Sureties and Insurers A. All bonds and insurance required by the Contract Documents to be purchased and maintained by Contractor shall be obtained from surety or insurance companies that are duly licensed or authorized in the State of Texas to issue bonds or insurance policies for the limits and coverages required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 6.02 Performance, Payment, and Maintenance Bonds A. Contractor shall furnish a performance bond and a payment bond, in accordance with the provisions of the Texas Government Code Chapter 2253 or successor statute and as required by the City, each in an amount at least equal to the Contract Price, as security for the faithful performance and payment of all of Contractor’s obligations under the Contract. The performance and payment bonds must be provided by the Contractor to the City prior to the Contractor beginning any Work. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 754 00 72 00 GENERAL CONDITIONS Page 19 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 B. Contractor shall furnish maintenance bonds in an amount equal to the Contract Price as security to protect the City against any defects in any portion of the Work described in the Contract Documents. Maintenance bonds shall remain in effect for two (2) years after the date of Final Acceptance by the City. The maintenance bond(s) shall be provided as directed by the City as part of the close-out of the Contract and shall be provided prior to the final payment being made. C. All bonds shall be in the form prescribed by the Contract Documents, except as provided otherwise by Laws and Regulations, and must be issued and signed by a surety named in “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Department Circular 570 (as amended and supplemented) by the Bureau of the Fiscal Service, U.S. Department of the Treasury. A bond signed by an agent or attorney-in-fact must be accompanied by a certified copy of that individual’s authority to bind the surety. The evidence of authority must show that it is effective on the date the agent or attorney-in-fact signed the accompanying bond. D. If the surety on a bond furnished by Contractor is declared bankrupt or becomes insolvent, or the surety ceases to meet the requirements above, or its right to do business is terminated in the State of Texas, then Contractor shall promptly notify City in writing and shall, within 30 days after the event giving rise to such notification, provide another bond and surety, both of which must comply with the bond and surety requirements above. E. If Contractor has failed to obtain a required bond, City may refuse to allow the Contractor to begin Work, exclude the Contractor from the Site and exercise City’s termination rights under Article 15. F. Upon request to Contractor from any Subcontractor, Supplier, or other person or entity claiming to have furnished labor, services, materials, or equipment used in the performance of the Work, Contractor shall provide a copy of the payment bond to such person or entity. 6.03 Certificates of Insurance A. Contractor shall deliver to City, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance and endorsements (and other evidence of insurance requested by City or any other additional insured) establishing that Contractor has obtained and is maintaining the policies and coverages required by these General Conditions and the Supplementary Conditions prior to beginning any Work. 1. The certificate of insurance shall document the City, and all identified entities named in the Supplementary Conditions as “additional insureds” on all liability policies. 2. The Contractor’s general liability insurance shall include a “per project” or “per location” endorsement, that shall be identified in the certificate of insurance provided to the City. 3. The certificate shall be signed by an agent authorized to bind coverage on behalf of the insured, be complete in its entirety, and show complete insurance carrier names as listed in the current A.M. Best Property & Casualty Guide. 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Except for workers’ compensation, all insurers must have a minimum rating of A-: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 755 00 72 00 GENERAL CONDITIONS Page 20 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 financial strength and solvency to the satisfaction City. If the rating is below that required, written approval of City is required. 5. All applicable policies shall include a Waiver of Subrogation (Rights of Recovery) in favor of the City. In addition, the Contractor agrees to waive all rights of subrogation against the Engineer (if applicable), and each additional insured identified in the Supplementary Conditions 6. Failure of the City to demand such certificates or other evidence of full compliance with the insurance requirements or failure of the City to identify a deficiency from evidence that is provided shall not be construed as a waiver of Contractor’s obligation to maintain such lines of insurance coverage or to provide such certificates or other evidence of full compliance with the insurance requirements. 7. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. 8. Unless otherwise stated, all required insurance shall be written on the “occurrence basis”. If If City agrees in writing that coverage is underwrittenmay be written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the effective date of the Agreement and the certificate of insurance shall state that the coverage is claims-made and the retroactive date. The insurance coverage shall be maintained for the duration of the Contract and for three (3) years following Final Acceptance or for the warranty period provided for under the Contract Documents or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. 9. Policies shall have no exclusions by endorsements that either nullify or amend the required lines of coverage, nor or decrease the limits of said coverage unless such endorsements are approved in writing by the City. In the event a Notice of an Award has been issued or the Agreement executed, and the policy exclusions are determined to be unacceptable or the City desires that the Contractor obtain additional insurance coverage the contract price shall be adjusted by the cost of the premium for such additional coverage plus 10%. 10. For any proposed self-insured retention (SIR),) in excess of $25,000.00, affecting insurance coverage, Contractor must obtain the written approval of the City in regard to asset value and stockholders' equity. In lieu of traditional insurance, proposed alternative coverage maintained through insurance pools or, risk retention groups, or self-funding will also require the written approval of the City. 11. Any deductible in excess of $5,000.00, for any policy that does not provide coverage on a first-dollar basis must be acceptable to and approved in writing by the City. 12. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and limits when deemed necessary and prudent by the City based upon the scope of the Work, changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City. The City will provide prior notice of 90 days and the insurance adjustments shall be incorporated into the Work by Change Order. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 756 00 72 00 GENERAL CONDITIONS Page 21 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 13. City shall be entitled, upon written request to Contractor and without expense to City, to receive copies of policies and endorsements thereto and. City may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions necessary to conform the policy and endorsements to the requirements of the Contract. Deletions, revisions, or modifications shall not be required where policy provisions are established by law or regulations binding upon either party or the underwriter on any such policies. 14. City shall not be responsible for the direct payment of insurance premium costs for Contractor’s insurance. 6.04 Contractor’s Insurance A. Workers Compensation and Employers’ Liability: Contractor shall purchase and maintain such insurance coverage with limits consistent with statutory benefits outlined in the Texas Workers’ Compensation Act (Texas Labor Code, Ch. 406, as amended), and minimum limits for Employers’ Liability as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor’s performance of the Work and Contractor’s other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers’ compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of employees. B. Commercial General Liability. Coverage shall include but not be limited to covering liability (bodily injury, including death, or property damage) arising from: premises/operations, independent contractors, products/completed operations, personal injury including death, liability under an insured contract, and explosion/collapse/underground (where those exposures exist). Insurance shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services Office (ISO) policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. The Commercial General Liability policy shall have no exclusions by endorsements that would alter or nullify premises/operations, products/completed operations, contractual, personal injury, or advertising injury, that are normally contained with the policy, unless the City approves such exclusions in writing. For construction projects that present a substantial completed operation exposure, the City may require the Contractor to maintain completed operations coverage for a minimum of no less than three (3) years following the completion of the project (if identified in the Supplementary Conditions)). C. Automobile Liability. A commercial business auto policy shall provide coverage on “any auto”, defined as autos owned, hired and non-owned and provide indemnity for claims for damages because of bodily injury or death of any person and/or property damage arising out of or related to the work, maintenance or use of any motor vehicle by the Contractor, any DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 757 00 72 00 GENERAL CONDITIONS Page 22 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable. D. Railroad Protective Liability. If any of the Work or any warranty work is within the limits of railroad right-of-way, the Contractor shall comply with the requirements identified in the Supplementary Conditions. E. Notification of Policy Cancellation: Contractor shall immediately notify City upon cancellation or other loss of insurance coverage. Contractor shall stop Work until replacement insurance has been procured. There shall be no time credit for delays or days not worked pursuant to this section. 6.05 Acceptance of Bonds and Insurance; Option to Replace A. If City has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the Contractor in accordance with Article 6 or the Supplementary Conditions on the basis of non-conformance with the Contract Documents, the City shall so notify the Contractor in writing within 10 Business Days after receipt of the certificates (or other evidence requested). Contractor shall provide to the City such additional information in respect of insurance provided as the City may reasonably request. If Contractor does not purchase or maintain all of the bonds and insurance required by the Contract Documents, the City shall notify the Contractor in writing of such failure prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Such failure to provide bonds or insurance as required by the Contract Documents is a breach of the terms of the Contract and the City may terminate the Contractor in accordance with the provisions of the Contract Documents. ARTICLE 7 – CONTRACTOR’S RESPONSIBILITIES 7.01 Contractor’s Means and Methods of Construction A. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. B. If the Contract Documents note, or Contractor determines, that professional engineering or other design services are needed to carry out Contractor’s responsibilities for construction means, methods, techniques, sequences, and procedures, or for Site safety, then Contractor shall cause such services to be provided by a properly licensed design professional, at Contractor’s expense. Such services are not City-delegated professional design services under this Contract, and neither City nor Engineer has any responsibility with respect to (1) Contractor’s determination of the need for such services, (2) the qualifications or licensing of the design professionals retained or employed by Contractor, (3) the performance of such services, or (4) any errors, omissions, or defects in such services. 7.02 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. B. At all times during the progress of the Work, Contractor shall identify and assign a competent superintendent, who is proficient in English, and who shall not be replaced without written DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 758 00 72 00 GENERAL CONDITIONS Page 23 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 notice to City of the name of the replacement superintendent. If at any time the superintendent is not satisfactory to the City, Contractor shall, if requested by City, replace the superintendent with another satisfactory to City. C. Contractor shall notify the City 24 hours prior to moving areas during the sequence of construction. 7.03 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site. B. Contractor shall be fully responsible to City for all acts and omissions of Contractor’s employees; of Suppliers and Subcontractors, and their employees; and of any other individuals or entities performing or furnishing any of the Work, just as Contractor is responsible for Contractor’s own acts and omissions. C. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours on Business Days. Contractor will not permit the performance of Work outside of regular working hours on Business Days without City’s prior written consent (which will not be unreasonably withheld)). Contractor’s written request (by letter or electronic communication) for City’s written consent must be made as follows: 1. for Work beyond regular working hours on Business Days, request must be made by noon at least two (2) Business Days prior; 2. for Work during Weekend Working Hours, request must be made by noon of the preceding Wednesday; and 3. for Work on state or federal holidays observed by the City, request must be made sufficiently in advance of the holiday, to satisfy requirements for City Council approval. 7.04 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, Contractor required testing, start up, and completion of the Work, whether or not such items are specifically called for in the Contract Documents. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of sufficient quality to complete the Work, and must be new and of good quality, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of City. If required by City, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment to be incorporated into the Work shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 759 00 72 00 GENERAL CONDITIONS Page 24 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. D. All items of standard equipment to be incorporated into the Work shall be the latest model at the time of bid, unless otherwise specified. 7.05 Project Schedule A. Contractor shall adhere to the Project Schedule established in accordance with Paragraph 2.06 and the General Requirements as it may be adjusted from time to time as provided below. 1. Contractor shall submit to the City for acceptance (to the extent indicated in Paragraph 2.06 and the General Requirements) proposed adjustments in the Project Schedule that will not result in changing the Contract Time. Such adjustments must comply with any provisions of the General Requirements applicable thereto. 2. Contractor shall submit to City a monthly Project Schedule with a monthly progress payment request for the duration of the Contract in accordance with the Construction Progress Schedule, General Requirements 01 32 16. 3. Proposed adjustments in the Project Schedule that will change the Contract Time shall be submitted in accordance with the requirements of Article 11. Adjustments in Contract Time may only be made by a Change Order. 7.06 “Or Equals” A. Contractor’s Request; Governing Criteria: Whenever an item of equipment or material is specified or described in the Contract Documents by using the names of one or more proprietary items or specific Suppliers, the Contract Price has been based upon Contractor furnishing such item as specified. The specification or description of such an item is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or “or equal” item is permitted, Contractor may request that City permit the use of other items of equipment or material, or items from other proposed Suppliers, under the circumstances described below. 1. If City in its sole discretion determines that an item of equipment or material proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by City as an “or equal” item. For the purposes of this Paragraph, a proposed item of equipment or material will be considered functionally equal to an item so named if: a. the City determines that: 1) it is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; 3) it has a proven record of performance and availability of responsive service; and 4) it is not objectionable to City. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 760 00 72 00 GENERAL CONDITIONS Page 25 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 b. Contractor certifies that, if the proposed item is approved and incorporated into the Work: 1) there will be no increase in cost to the City or increase in Contract Time; and 2) the item will conform substantially to the detailed requirements of the item named in the Contract Documents. B. Contractor’s Expense: Contractor shall provide all data in support of any proposed “or equal” item at Contractor’s expense. C. City’s Evaluation and Determination: City will be allowed a reasonable time to evaluate each “or-equal” request. City may require Contractor to furnish additional data about the proposed “or-equal” item. City will be the sole judge of acceptability. No “or-equal” item will be ordered, furnished, installed, or utilized until City’s review is complete and City determines that the proposed item is an “or-equal.” City.” City will advise Contractor in writing of its determination. D. Effect of City’s Determination: Neither approval nor denial of an “or-equal” request will result in any change in Contract Price. The City’s denial of an “or-equal” request will be final and binding, and may not be reversed through an appeal under any provision of the Contract. E. Treatment as a Substitution Request: If City determines that an item of equipment or material proposed by Contractor does not qualify as an “or-equal” item, Contractor may request that City consider the item a proposed substitution pursuant to Paragraph 7.07. 7.07 Substitutions A. Contractor’s Request; Governing Criteria: Unless the specification or description of an item of equipment or material required to be furnished under the Contract Documents contains or is followed by words reading that no substitution is permitted, Contractor may request that City permit the use of other items of equipment or material under the circumstances described below. To the extent possible such requests must be made before commencement of related Work at the Site. 1. Contractor shall submit sufficient information as provided below to allow City to determine if the item of material or equipment proposed is functionally equivalent to that named and an acceptable substitution therefor. City will not accept requests for review of proposed substitute items of equipment or material from anyone other than Contractor. 2. The requirements for review by City will be as set forth in Paragraph 7.07.B, as supplemented by the Specifications, and as City may decide is appropriate under the circumstances. 3. Contractor shall make written application to City for review of a proposed substitute item of equipment or material that Contractor seeks to furnish or use. The application shall comply with Section 01 25 00 and: a. will certify that the proposed substitute item will: 1) perform adequately the functions and achieve the results called for by the general design; 2) be substantially similar in substance to the item specified; and DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 761 00 72 00 GENERAL CONDITIONS Page 26 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 3) be well-suited to the same use as the item specified. b. will state: 1) the extent, if any, to which the use of the proposed substitute item will adversely impact Contractor’s achievement of Final Acceptance on or before the Contract Time; 2) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with City for other work on the Project) to adapt the design to the proposed substitute item; and 3) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty. c. will identify: 1) all variations of the proposed substitute item from the item specified; and 2) available engineering, sales, maintenance, repair, and replacement services. d. will contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including but not limited to changes in Contract Price, shared savings, costs of redesign, and Damage Claims of other contractors affected by any resulting change. B. City’s Evaluation and Determination: City will be allowed a reasonable time to evaluate each substitution request. City may require Contractor to furnish additional data about the proposed substitute item. City will be the sole judge of acceptability. No substitute will be ordered, furnished, installed, or utilized until City’s review is complete and City determines that the proposed item is an acceptable substitution. City’s approval determination will be evidenced by a Change Order accounting for the substitution itself and all related impacts, including changes in Contract Price or Contract Time. City will advise Contractor in writing of any denial determination. C. Special Guarantee: City may require Contractor to furnish at Contractor’s expense a special performance guarantee or other surety with respect to any substitution. Contractor shall indemnify and hold harmless City and its officers, elected and appointed officials, employees, agents, consultants and subcontractors and anyone directly or indirectly employed by them from and against any and all claims, damages, losses and expenses (including attorney’s fees) arising out of or relateds to the use of substituted materials or equipment. D. Reimbursement of City’s Cost: City will record City’s costs in evaluating a substitution proposed or submitted by Contractor. Whether or not City approves a substitute so proposed or submitted by Contractor, Contractor shall reimburse City for evaluating each such proposed substitute. Contractor shall also reimburse City for the charges for making changes in the Contract Documents (or in the provisions of any other direct contract with City) resulting from the acceptance of each proposed substitute. E. Contractor’s Expense: Contractor shall provide all data in support of any proposed substitute at Contractor’s expense. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 762 00 72 00 GENERAL CONDITIONS Page 27 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 F. City Substitution Reimbursement: Cost savings attributable to acceptance of a substitution shall be paid to City by Contractor by an appropriate Change Order decreasing the Contract Price. G. Effect of City’s Determination: If City approves the substitution request, Contractor shall execute the proposed Change Order and proceed with the substitution. The City’s denial of a substitution request will be final and binding, and may not be reversed through an appeal under any provision of the Contract. Contractor may challenge the scope of reimbursement costs imposed under Paragraph 7.07.D, by timely submittal of a Change Order. 7.08 Concerning Subcontractors and Suppliers A. Contractor shall perform with its own organization, and with the assistance of workmen under its immediate superintendence, work of a value not less than 35% of the Contract Price, unless otherwise approved by the City. B. Contractor may retain Subcontractors and Suppliers for the performance of parts of the Work. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, against whom City may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection, except as provided in Paragraph 7.08.C. The Contractor’s retention of a Subcontractor or Supplier for the performance of parts of the Work will not relieve Contractor’s obligation to City to perform and complete the Work in accordance with the Contract. C. The City may require the use of specific Subcontractors, Suppliers, or other individuals or entities for the performance of designated parts of the Work , and will provide such requirements in the Supplementary Conditions. D. Contractor shall provide to City as part of the Bid, the identity of all proposed Subcontractors and Suppliers. Such proposed Subcontractor or Supplier shall be deemed acceptable to City unless City raises a substantive, reasonable objection prior to execution of the Agreement. E. Contractor shall be fully responsible to City for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor just as Contractor is responsible for Contractor’s own acts and omissions. Nothing in the Contract: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between City and any such Subcontractor, Supplier or other individual or entity; nor 2. shall create any obligation on the part of City to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. F. No acceptance by City of any such Subcontractor or Supplier, whether initially or as a replacement, will constitute a waiver of the right of City to the completion of the Work in accordance with the Contract Documents, Contract Price and Contract Time. G. Contractor shall be solely responsible for scheduling and coordinating the tasks of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 763 00 72 00 GENERAL CONDITIONS Page 28 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 H. All Work performed for Contractor by a Subcontractor or Supplier must be pursuant to an appropriate contractual agreement that specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract for the benefit of City. Contractor must comply with all applicable federal, state, and local laws, statutes, ordinances or regulations, including but not limited to immigration laws, workers compensation laws and wage laws, in the hiring of any Subcontractor or Supplier and shall ensure that each Subcontractor or Supplier has the same obligations. I. Contractor shall restrict all Subcontractors and Suppliers from communicating with City, except through Contractor or in case of an emergency, or as otherwise expressly allowed in this Contract. 7.09 Wage Rates A. Duty to pay Prevailing Wage Rates: The Contractor shall comply with all requirements of Chapter 2258, Texas Government Code (as amended), including the payment of not less than the rates determined by the City Council of the City of Denton to be the prevailing wage rates in accordance with Chapter 2258. The then current prevailing wage rates at the time of execution of the Agreement are included in these Contract Documents. B. Penalty for Violation: A Contractor or any Subcontractor who does not pay the prevailing wage shall, upon demand made by the City, pay to the City $60 for each worker employed for each calendar day or part of the day that the worker is paid less than the prevailing wage rates stipulated in these contract documents. This penalty shall be retained by the City to offset its administrative costs, pursuant to Texas Government Code Section 2258.023. C. Complaints of Violations and City Determination of Good Cause: On receipt of information, including a complaint by a worker, concerning an alleged violation of Section 2258.023, Texas Government Code, by a Contractor or Subcontractor, the City shall make an initial determination, before the 31st day after the date the City receives the information, as to whether good cause exists to believe that the violation occurred. The City shall notify in writing the Contractor or Subcontractor and any affected worker of its initial determination. Upon the City’s determination that there is good cause to believe the Contractor or Subcontractor has violated Chapter 2258, the City shall retain the full amounts claimed by the claimant or claimants as the difference between wages paid and wages due under the prevailing wage rates, such amounts being retained from successive progress payments pending a final determination of the violation. D. Arbitration Required if Violation Not Resolved: An issue relating to an alleged violation of Section 2258.023, Texas Government Code, including a penalty owed to the City or an affected worker, shall be submitted to binding arbitration in accordance with the Texas General Arbitration Act (Article 224 et seq., Revised Statutes) if the Contractor or Subcontractor and any affected worker does not resolve the issue by agreement before the 15th day after the date the City makes its initial determination pursuant to Paragraph 7.09.C. If the persons required to arbitrate under this section do not agree on an arbitrator before the 11th day after the date that arbitration is required, a district court shall appoint an arbitrator on the petition of any of the persons. The City is not a party in the arbitration. The decision and award of the arbitrator is final and binding on all parties and may be enforced in any court of competent jurisdiction. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 764 00 72 00 GENERAL CONDITIONS Page 29 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 E. Records to be Maintained: The Contractor and each Subcontractor shall, for a period of three (3) years following the date of Final Acceptance, maintain records that show (i) the name and occupation of each worker employed by the Contractor in the construction of the Work provided for in this Contract; and (ii) the actual per diem wages paid to each worker. The records shall be available in Denton County, Texas at all reasonable hours for inspection by the City. The provisions of Paragraph 7.23, Right to Audit, shall pertain to this inspection. F. Progress Payments: With each progress payment request or payroll period, whichever is less, the Contractor shall submit an affidavit stating that the Contractor has complied with the requirements of Chapter 2258, Texas Government Code. G. Posting of Wage Rates: The Contractor shall post prevailing wage rates in a conspicuous place at the Site at all times. H. Subcontractor Compliance: The Contractor shall include in its subcontracts and/or shall otherwise require all of its Subcontractors to comply with Paragraphs 7.09.A through 7.09.G. 7.10 Patent Fees and Royalties A. Contractor shall pay all patent or license fees and royalties and pay all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If an invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of City, its use is subject to patent rights or copyrights calling for the payment of any patent or license fee or royalty to others, the existence of such rights will be disclosed in the Contract Documents. Failure of the City to disclose such information does not relieve the Contractor from its obligations to pay said fees or, royalties or costs to others. B. TO THE FULLEST EXTENT PERMITTED BY LAWS AND REGULATIONS, CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS CITY, AND ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, DIRECTORS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS AND SUBCONTRACTORS OF EACH AND ANY OF THEM, FROM AND AGAINST ALL CLAIMS, COSTS, LOSSES, AND DAMAGES (INCLUDING BUT NOT LIMITED TO ALL FEES AND CHARGES OF ENGINEERS, ARCHITECTS, ATTORNEYS, AND OTHER PROFESSIONALS AND ALL COURT OR ARBITRATION OR OTHER DISPUTE RESOLUTION COSTS) ARISING OUT OF OR RELATING TO ANY INFRINGEMENT OF PATENT RIGHTS OR COPYRIGHTS INCIDENT TO THE USE IN THE PERFORMANCE OF THE WORK OR RESULTING FROM THE INCORPORATION IN THE WORK OF ANY INVENTION, DESIGN, PROCESS, PRODUCT, OR DEVICE. 7.11 Permits and Utilities A. Contractor obtained permits and licenses. Unless otherwise expressly provided in the Contract Documents, Contractor shall obtain and pay for all construction permits and licenses. City shall provide reasonable assistance to Contractor, if necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work applicable at the time the Notice of Award is issued, except for permits provided by the City as specified in Paragraph 7.11.B. City shall pay the charges of utility service providers for connections for providing permanent service to the Work. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 765 00 72 00 GENERAL CONDITIONS Page 30 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 B. City obtained permits and licenses. City will obtain and pay for those permits and licenses identified as City’s responsibility in the Supplementary Conditions or Contract Documents. It will be the Contractor’s responsibility to comply with and carry out the provisions of the permit. If the Contractor initiates changes to the Contract and the City approves the changes, the Contractor is responsible for obtaining clearances and coordinating with the appropriate regulatory agency. relating to the changes. The City will not reimburse the Contractor for any cost associated with the requirements of any City acquired permit. The following are permits the City will obtain if required: 1. Texas Department of Transportation Permits 2. U.S. Army Corps of Engineers Permits 3. Texas Commission on Environmental Quality Permits 4. Railroad Company Permits 5. Texas Department of Licensing and Regulation (TDLR) Permits C. Outstanding permits and licenses. Any outstanding permits and licenses are anticipated to be acquired in accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule submitted by the Contractor in accordance with the Contract Documents must consider any outstanding permits and licenses. 7.12 Taxes A. On issuance of a Notice of Award by the City, an organization which qualifying for exemption pursuant to Texas Tax Code, Subchapter H (as amended), the Contractor may purchase, rent or lease all materials, supplies and equipment used or consumed in the performance of this contract by issuing to hisits Supplier an exemption certificate in lieu of the tax, said exemption certificate to comply with State Comptroller’s Rulings applicable to Texas Tax Code, Subchapter H. Any such exemption certificate issued to the Contractor in lieu of the tax shall be subject to and shall comply with all applicable rulings pertaining to the Texas Tax Code, Subchapter H. B. Texas tax permits and information may be obtained from: 1. Comptroller of Public Accounts Sales Tax Division Capitol Station Austin, TX 78711; or 2. http://www.window.state.tx.us/taxinfo/taxforms/93-forms.html 7.13 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, City shall not be responsible for monitoring Contractor’s compliance with any Laws and Regulations. B. If Contractor performs any Work or takes any other action knowing or having reason to know that it is contrary to Laws and Regulations, Contractor shall be liable for all resulting claims, costs losses, and damages, and shall indemnify and hold harmless City, and its officers, elected DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 766 00 72 00 GENERAL CONDITIONS Page 31 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 and appointed officials, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work or other action. C. Changes in Laws and Regulations not known at the time of the City’s issuance of a Notice of Award having an effect on the cost or time of performance of the Work may be the subject of an adjustment in Contract Price or Contract Time. 7.14 Record Documents A. Contractor shall maintain in a safe place at the Site one printed record copy of all Drawings, Specifications, Addenda, Change Orders, Field Orders, written interpretations and clarifications, and approved Shop Drawings. Contractor shall keep such record documents in good order and annotate them to show changes made during construction. Contractor shall include accurate locations for buried and imbedded items. These record documents, together with all approved Samples, will be available to City for reference. Upon completion of the Work, Contractor shall deliver these record documents to City prior to Final Inspection. 7.15 Safety and Protection A. As between City and Contractor, Contractor shall be responsible for the safety of persons and property in the performance of the Work, for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work and for compliance with applicable safety Laws and Regulations. B. Contractor shall designate a qualified and experienced safety representative whose duties and responsibilities are the prevention of Work-related accidents and the maintenance and supervision of safety precautions and programs. Contractor shall inform the City in writing of Contractor’s designated safety representative at the Site. C. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to: 1. all persons on the Site or who may be affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, other work in progress, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. D. All damage, injury, or loss to any property referred to in Paragraph 7.1515.C.2 or 7.1515.C.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be the responsibility of and remedied by Contractor at its expense. E. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 767 00 72 00 GENERAL CONDITIONS Page 32 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 and shall implement, erect and maintain all necessary safeguards for such safety and protection. F. Contractor shall notify City; the owners of adjacent property; the owners of Underground Facilities and other utilities (if the identity of such owners is known to Contractor); and other contractors and utility owners performing work at or adjacent to the Site, in writing, when Contractor knows that prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property or work in progress. G. Contractor shall comply with the applicable requirements of City’s safety programs, if any. H. Contractor shall inform City in advance in writing of the specific requirements of Contractor’s safety program with which City’s and Engineer’s employees and representatives must comply while at the Site. I. Contractor’s duties and responsibilities for safety and protection will continue until all the Work is completed and City has issued a Letter of Final Acceptance. J. Contractor’s duties and responsibilities for safety and protection will resume whenever Contractor or any Subcontractor or Supplier returns to the Site to fulfill warranty or correction obligations, or to conduct other tasks arising from the Contract Documents. 7.16 Hazard Communication Programs A. Contractor shall be responsible for coordinating any exchange of safety data sheets (formerly known as material safety data sheets) or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws and Regulations. 7.17 Emergencies and/or Rectification A. In the event of threatened or actual emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to immediately act to prevent damage, injury, or loss. Contractor shall give City prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused by an emergency or are required as a result of Contractor’s response to an emergency. If City determines that a change in the Contract Documents is required because of an emergency or Contractor’s response, a Change Order may be issued. B. Should the Contractor fail to respond to a request from the City to rectify any discrepancies, omissions, or correction necessary to conform with the requirements of the Contract Documents, the City shall give the Contractor written notice that such work or changes are to be performed. The written notice shall direct attention to the discrepant condition and request the Contractor to take remedial action to correct the condition. In the event the Contractor does not take proper action within 24 hours to fulfill this written request or fails to show just cause for not taking the proper action, within 24 hours, the City may take such remedial action with City resources or by contract. The City shall deduct an amount equal to the entire cost for such remedial action, plus 25% from any funds due or to become due the Contractor on the Project. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 768 00 72 00 GENERAL CONDITIONS Page 33 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 7.18 Submittals A. Submittal Procedures for Shop Drawings and Samples: Contractor shall submit required Submittals to City for review and acceptance in accordance with the accepted Schedule of Submittals (as required by Paragraph 2.03). 1. Contractor shall submit the Submittals in accordance with Section 01 33 00 of the General Requirements. 2. Data shown on the Submittals must be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to demonstrate to City the services, materials, and equipment Contractor proposes to provide, and to enable City to review the information for the limited purposes required by Paragraph 7.18.C. 3. Submittals reviewed and accepted by City for conformance with the design concept shall be executed in conformity with the Contract Documents unless otherwise required by City. 4. When Submittals are submitted for the purpose of showing the installation in greater detail, their review shall not excuse Contractor from requirements shown on the Drawings and Specifications. 5. For-Information-Only submittals upon which the City is not expected to conduct a review or take responsive action may be so identified in the Contract Documents. 6. Contractor shall submit the required number of Samples specified in the Specifications. 7. Contractor shall clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which it is intended and other data as City may require to enable City to review the Submittal for the limited purposes set forth in Paragraph 7.18.C. B. Where a Submittal is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to City’s review and acceptance of the pertinent submittal will be at the sole risk, expense and responsibility of Contractor. C. City’s Review 1. City will provide timely review of Submittals in accordance with the accepted Schedule of Submittals. City’s review and acceptance will be to determine if the items covered by the Submittals will, after installation or incorporation in the Work, comply with the requirements of the Contract Documents, and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. City’s review and acceptance will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence or procedure of construction is specifically and expressly called for by the Contract Documents), or to safety precautions or programs incident thereto. 3. City’s review and acceptance of a separate item as such will not indicate approval of the assembly in which the item functions. 4. City’s review and acceptance of a Submittal will not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Section 01 33 00 of the General DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 769 00 72 00 GENERAL CONDITIONS Page 34 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Requirements, and City has given written acceptance of each such variation by specific written notation thereof incorporated in or accompanying the Submittal. 5. City’s review and acceptance of a Submittal will not relieve Contractor from responsibility for complying with the requirements of the Contract Documents. 6. City’s review and acceptance of a Submittal, or of a variation from the requirements of the Contract Documents, will not, under any circumstances, change the Contract Time or Contract Price, unless such changes are included in a Change Order. 7. Neither City’s receipt, review, or acceptance of a Submittal will result in such item becoming a Contract Document. 8. Contractor shall perform the Work in compliance with the requirements and commitments set forth in accepted Submittals, subject to the provisions of Section 01 33 00 of the General Requirements. 7.19 Continuing the Work A. Except as otherwise provided, Contractor shall carry on the Work and adhere to the Project Schedule during all disputes or disagreements with City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as City and Contractor may otherwise agree in writing. 7.20 Contractor’s General Warranty and Guarantee A. Contractor warrants and guarantees to City that all Work will be in accordance with the Contract Documents and will not be defective. City and its officers, elected and appointed officials, directors, members, partners, employees, agents, consultants, and subcontractors shall be entitled to rely on Contractor’s warranty and guarantee. B. Contractor’s warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, or improper modification, maintenance, or operation, by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor’s obligation to perform and complete the Work in accordance with the Contract Documents is absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents, a release of Contractor’s obligation to perform the Work in accordance with the Contract Documents, or a release of Contractor’s warranty and guarantee under this Paragraph 7.20: 1. Observations by Engineer or City; 2. Recommendation by Engineer or payment by City of any progress or final payment; 3. The issuance of a letter or certificate of Final Acceptance by City or any payment related thereto by City; 4. Use or occupancy of the Work or any part thereof by City; 5. Any review and acceptance of a Submittal by City; DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 770 00 72 00 GENERAL CONDITIONS Page 35 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 6. Any inspection, test, or acceptance by others; or 7. Any correction of defective Work by City. D. The Contractor shall remedy any defects or damages in the Work and pay for any damage to other work or property resulting therefrom which shall appear within a period of two (2) years from the date of Final Acceptance of the Work unless a longer period is specified. Contractor shall furnish a good and sufficient maintenance bond, complying with the requirements of Paragraph 6.02.B. The City will give notice of observed defects with reasonable promptness. 7.21 Indemnification A. CONTRACTOR COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, THE CITY, ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, EMPLOYEES, AGENTS, CONSULTANTS AND SUBCONTRACTORS AND ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM , FROM AND AGAINST ANY AND ALL CLAIMS FOR PERSONAL OR BODILY INJURY OR DEATH, ARISING OUT OF OR RELATED TO, OR ALLEGED TO ARISE OUT OF OR BE RELATED TO, THE WORK AND SERVICES TO BE PERFORMED BY THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES UNDER THESE CONTRACT DOCUMENTS. THIS INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY. OR ITS OFFICERS, ELECTED OR APPOINTED OFFICIALS, EMPLOYEES, AGENTS, CONSULTANTS OR SUBCONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM. THIS INDEMNITY PROVISION IS INTENDED TO INCLUDE, WITHOUT LIMITATION, INDEMNITY FOR COSTS, EXPENSES AND LEGAL FEES INCURRED IN DEFENDING AGAINST SUCH CLAIMS AND CAUSES OF ACTIONS. B. CONTRACTOR COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS, AT ITS OWN EXPENSE, THE CITY, ITS OFFICERS, ELECTED AND APPOINTED OFFICIALS, EMPLOYEES, AGENTS, CONSULTANTS AND SUBCONTRACTORS AND ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM FROM AND AGAINST ANY AND ALL LOSS, DAMAGE OR DESTRUCTION OF PROPERTY OF THE CITY, ARISING OUT OF OR RELATED TO, OR ALLEGED TO ARISE OUT OF OR BE RELATED TO, THE WORK AND SERVICES TO BE PERFORMED BY THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES UNDER THIS CONTRACT. THIS INDEMNIFICATION PROVISION IS SPECIFICALLY INTENDED TO OPERATE AND BE EFFECTIVE EVEN IF IT IS ALLEGED OR PROVEN THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED, IN WHOLE OR IN PART, BY ANY ACT, OMISSION OR NEGLIGENCE OF THE CITY OR ITS OFFICERS, ELECTED OR APPOINTED OFFICIALS, EMPLOYEES, AGENTS, CONSULTANTS OR SUBCONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 771 00 72 00 GENERAL CONDITIONS Page 36 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 7.22 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor’s responsibilities for construction means, methods, techniques, sequences and procedures. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, City will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided pursuant to the professional standard of care by a properly licensed design professional, whose signature and seal must appear on all drawings, calculations, specifications, certifications, and Submittals prepared by such design professional. Such design professional must issue all certifications of design required by Laws and Regulations. C. If a Submittal related to the requirements indicated in Paragraph 7.22.B is prepared by Contractor, a Subcontractor, or others for submittal to City, then such Submittal must bear the written approval of Contractor’s design professional when submitted by Contractor to City. D. City shall be entitled to rely upon the adequacy, accuracy, and completeness of the services, certifications, and approvals performed or provided by the design professionals retained or employed by Contractor under the conditions indicated in Paragraph 7.22.B, subject to the professional standard of care and the performance and design criteria stated in the Contract Documents. E. Pursuant to this Paragraph 7.22, City’s review, acceptance, and other determinations regarding design drawings, calculations, specifications, certifications, and other Submittals furnished by Contractor pursuant to the conditions indicated in Paragraph 7.22.B, will be only for the following limited purposes: 1. Checking for conformance with the requirements of this Paragraph 7.22; 2. Confirming that Contractor (through its design professionals) has used the performance and design criteria specified in the Contract Documents; and 3. Establishing that the design furnished by Contractor is consistent with the design concept expressed in the Contract Documents. 7.23 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 during the term of the Contract and for 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 made available, in Denton County, Texas within ten (10) Business Days of City’s 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 Denton County, Texas. Except as otherwise provided herein, the cost of the audit will be borne by the City DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 772 00 72 00 GENERAL CONDITIONS Page 37 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 unless the audit reveals an overpayment of 1% or greater. If the City is undertaking an audit or inspection pursuant to Paragraph 7.09 or if an overpayment of 1% or greater occurs, the City’s reasonable cost of the audit, including any travel costs, must be paid by the Contractor within five (5) Business Days of receipt of City’s invoice for such costs. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 7.24 Nondiscrimination A. The City is responsible for operating Public Transportation Programs and implementing transit-related projects, funded in part with Federal financial assistance awarded by the U.S. Department of Transportation and the Federal Transit Administration (FTA), without discriminating against any person in the United States on the basis of race, color, or national origin. B. Contractor shall comply with the requirements of Title VI, Civil Rights Act of 1964 as amended and the regulations promulgated thereunder, as may be further defined in the Supplementary Conditions, for any project receiving Federal assistance. ARTICLE 8 – OTHER WORK AT THE SITE 8.01 Other Work A. In addition to and apart from the Work under the Contract Documents, the City may perform other work at or adjacent to the Site. Such other work may be performed by City’s employees, or through contracts between the City and third parties. City may also arrange to have third-party utility owners perform work on their utilities and facilities at or adjacent to the Site. B. If City performs other work at or adjacent to the Site with City’s employees, or through contracts for such other work, then City shall give Contractor written notice thereof prior to starting any such other work, if such other work is not noted in the Contract Documents. C. Contractor shall afford proper and safe access to the Site to each contractor that performs such other work, each utility owner performing other work, and City, if City is performing other work with City’s employees, and provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work. D. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of City and the others whose work will be affected. E. If the proper execution or results of any part of Contractor’s Work depends upon work performed by others, Contractor shall inspect such other work and promptly report to City in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor’s Work. Contractor’s failure to so report will constitute an acceptance of such other work as fit and proper for integration with DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 773 00 72 00 GENERAL CONDITIONS Page 38 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Contractor’s Work except for latent defects and deficiencies in such other work that could not have been discovered through a proper inspection. F. The provisions of this Article 8 are not applicable to work that is performed by third-party utilities or other third-party entities without a contract with City, or that is performed without having been arranged by City. If such work occurs, then any related delay, disruption, or interference incurred by Contractor is governed by the provisions of Paragraph 4.03.D.3. 8.02 Coordination A. If City intends to contract with others for the performance of other work at or adjacent to the Site, to perform other work at or adjacent to the Site with City’s employees, or to arrange to have utility owners perform work at or adjacent to the Site, the following will be set forth in the Supplementary Conditions or provided to Contractor prior to the start of any such other work: 1. The identity of the individual or entity that will have authority and responsibility for coordination of the activities among the various contractors; 2. An itemization of the specific matters to be covered by such authority and responsibility; and 3. The extent of such authority and responsibilities. B. Unless otherwise provided in the Supplementary Conditions, City shall have authority for such coordination. 8.03 Legal Relationships A. Contractor shall take reasonable and customary measures to avoid damaging, delaying, disrupting, or interfering with the work of City, any other contractor, or any utility owner performing other work at or adjacent to the Site. 1. When City is performing other work at or adjacent to the Site with City’s employees, Contractor shall be liable to City for damage to such other work, and for the reasonable direct delay, disruption, and interference costs incurred by City as a result of Contractor’s failure to take reasonable and customary measures with respect to City’s other work. B. If Contractor damages, delays, disrupts, or interferes with the work of any other contractor, or any utility owner performing other work at or adjacent to the Site, through Contractor’s failure to take reasonable and customary measures to avoid such impacts, or if any Damage Claim arising out of Contractor’s actions, inactions, or negligence in performance of the Work at or adjacent to the Site is made by any such other contractor or utility owner against Contractor, City, or Engineer, then Contractor shall (1) promptly attempt to settle the claim as to all parties through negotiations with such other contractor or utility owner, or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law, and (2) indemnify, defend and hold harmless City and Engineer, and the officers, elected and appointed officials, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against any such claims, and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such damage, delay, disruption, or interference. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 774 00 72 00 GENERAL CONDITIONS Page 39 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 9 – CITY’S RESPONSIBILITIES 9.01 Communications to Contractor A. Except as otherwise provided in the Supplementary Conditions, City shall issue all communications to Contractor. 9.02 Furnish Data A. City shall promptly furnish the data required of City under the Contract Documents. 9.03 Pay When Due A. City shall make payments to Contractor when they are due in accordance with and subject to the provisions of Article 14. 9.04 Lands and Easements; Reports, Tests, and Drawings A. City’s duties with respect to providing lands and easements are set forth in Paragraph 5.01. B. Article 5 refers to City’s identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions at the Site, and drawings of physical conditions relating to existing surface or subsurface structures at or contiguous to the Site that have been utilized by City in preparing the Contract Documents. 9.05 Change Orders A. City’s responsibilities with respect to Change Orders are set forth in Article 11. 9.06 Inspections, Tests, and Approvals A. City’s responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph 13.02.DD. 9.07 Limitations on City’s Responsibilities A. The City shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. City will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents. 9.08 Undisclosed Hazardous Environmental Condition A. City’s responsibility in respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph 5.06. 9.09 Compliance with Safety Program A. While at the Site, City’s employees and representatives shall comply with the specific applicable requirements of Contractor’s safety programs of which City has been informed in advance in writing pursuant to Paragraph 7.15. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 775 00 72 00 GENERAL CONDITIONS Page 40 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 10 – CITY’S OBSERVATION DURING CONSTRUCTION 10.01 City’s Project Manager or Duly Authorized Representative A. City will provide a Project Manager or duly authorized representative during the construction period. The duties and responsibilities and the limitations of authority of City’s Project Manager or duly appointed representative during construction are set forth in the Contract Documents. B. City’s Project Manager for these Contract Documents is as set forth in the Supplementary Conditions. City will establish a duly authorized representative at the Preconstruction Meeting in accordance with Section 01 31 19 of the General Requirements. 10.02 Visits to Site A. City will make visits to the Site at intervals appropriate to the various stages of construction as City deems necessary in order to observe the progress that has been made and the quality of the various aspects of Contractor’s executed Work. Based on information obtained during such visits and observations, City will determine, in general, if the Work is proceeding in accordance with the Contract Documents. City will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. City’s efforts will be directed toward providing City a greater degree of confidence that the completed Work will conform generally to the Contract Documents. B. City’s visits and observations are subject to all the limitations on City’s responsibility set forth in Paragraph 99.07. Particularly, but without limitation, during or as a result of City’s visits or observations of Contractor’s Work, City will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 10.03 Determinations for Work Performed A. As applicable, Contractor will determine the actual quantities and classifications of Work performed.. City’s Project Manager or duly authorized representative will review with Contractor the preliminary determinations on such matters before rendering a written recommendation. City’s written decision will be final (except as modified to reflect changed factual conditions or more accurate data). 10.04 Decisions on Requirements of Contract Documents and Acceptability of Work A. City will be the interpreter of the requirements of the Contract Documents and judge the acceptability of the Work thereunder. B. City will render a written decision on any issue referred. C. City’s written decision on the issue referred will be final and binding on the Contractor, subject to the provisions of Paragraph 11.07. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 776 00 72 00 GENERAL CONDITIONS Page 41 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 11 – CHANGES ININ THE WORK; CLAIMS; EXTRA WORK 11.01 Amending and Supplementing the Contract A. The Contract may be amended toto provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof, including in the Contract Price or Contract Time, but such amendment will be made by Change Order only. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work not involving a change in Contract Price or Contract Time, may be authorized, by one of the following ways: 1. A Field Order; or 2. City’s review of a Submittal (subject to the provisions of Paragraph 7.18.C); or 3. City’s written interpretation or clarification. 11.02 Execution of Change Orders A. City and Contractor shall execute appropriate Change Orders covering: 1. Changes in the Contract Price or Contract Time which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed.. 2. Changes in the Work which are: (a) ordered by City pursuant to Paragraph 11.04, (b) required because of City’s acceptance of defective Work under Paragraph 13.05 or City’s correction of defective Work under Paragraph 13.08, or (c) as otherwise agreed to by the parties. 11.03 Field Orders A. City may authorize minor variations and deviations in changes in the Work if the changes do not involve an adjustment in the Contract Price or the Contract Time and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Such changes will be accomplished by a Field Order and will be binding on both the City and Contractor, which shall perform the Work involved promptly. 11.04 Authorized Changes in the Work – Extra Work A. Without invalidating the Contract and without notice to any surety, City may, at any time or from time to time, order Extra Work. Upon notice of such Extra Work, Contractor shall proceed with the Work involved only upon receiving written notice from City. Extra Work will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). Extra Work shall be memorialized by a Change Order which may or may not precede an order of Extra Work. B. For minor changes of Work not requiring changes to Contract Time or Contract Price, a Field Order may be issued by City. 11.05 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Time with respect to any work performed that is not required by the Contract DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 777 00 72 00 GENERAL CONDITIONS Page 42 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Documents, as amended, modified, or supplemented as allowed herein, except in certain cases of an emergency as provided in Paragraph 7.17.A. 11.06 Dispute of Extra Work A. Should a difference arise as to what does or does not constitute Extra Work, or as to the payment for such Extra Work, and the City requires its performance, the Contractor shall proceed with the Extra Work after making written request for a Change Order and shall keep accurate account of the actual reasonable cost thereof. Contract Claims regarding Extra Work shall be made pursuant to Paragraph 11.07. B. The Contractor shall furnish the City such records of all deviations from the original Contract Documents as may be necessary to enable the City to prepare for permanent record a corrected set of plans showing the actual work performed. C. The compensation agreed upon for Extra Work whether or not initiated by a Change Order shall be the full, complete and final payment for all charges, fees and costs Contractor incurs as a result of or relating to the Extra Work, whether said charges, fees or costs are known, unknown, foreseen or unforeseen at that time, including without limitation, any charges, fees or costs for delay, extended overhead, ripple or impact cost, or any other effect on changed or unchanged work as a result of the Extra Work. 11.07 Contract Claims Process A. City’s Decision Required: All Contract Claims, except those waived pursuant to Paragraph 14.08, shall be referred to the City for decision. A decision by City shall be required as a condition precedent to any exercise by Contractor of any rights or remedies he may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Contract Claims. B. Notice: 1. Written notice stating the general nature of each Contract Claim shall be delivered by the Contractor to City no later than 15 days after the start of the event giving rise thereto. The responsibility to substantiate a Contract Claim shall rest with the party making the Contract Claim. 2. Notice of the amount or extent of the Contract Claim, with supporting data shall be delivered to the City no later than 45 days after the start of the event giving rise thereto (unless the City notifies Contractor in writing that City will allow additional time for Contractor to submit additional or more accurate data in support of such Contract Claim). 3. A Contract Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 11.08. 4. A Contract Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Paragraph 11.09. 5. Each Contract Claim shall be accompanied by Contractor’s written statement that the adjustment claimed is the entire adjustment to which the Contractor believes it is entitled as a result of said event. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 778 00 72 00 GENERAL CONDITIONS Page 43 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 6. The City shall submit any response to the Contractor within 30 days after receipt of the Contractor’s last submittal (unless in connection with the Contract Claim (unless Contractor allows the City additional time to submit a response). C. City’s Action: City will review each Contract Claim and, within 30 days after receipt of the last submittal of the Contractor unless action by City’s Council is required, take one of the following actions in writing: 1. deny the Contract Claim in whole or in part; 2. approve the Contract Claim; or 3. notify the Contractor that the City is unable to resolve the Contract Claim if, in the City’s sole discretion, it would be inappropriate for the City to do so. For purposes of further resolution of the Contract Claim, such notice shall be deemed a denial. D. City’s written action under this Paragraph 11.07 will be final and binding, unless City or Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. E. No Contract Claim for an adjustment in Contract Price or Contract Time will be valid if not submitted in accordance with this Paragraph 11.07. F. If the City fails to take any action pursuant to this Paragraph 11.07, the Contract Claim is considered to have been denied by the City. 11.08 Change of Contract Price A. The Contract Price may only be changed by a Change Order. B. TheThe value of any Work covered by a Change Order will be determined as follows: 1. Where the Work involved is covered by unit prices contained in the Contract Documents, then by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 12.03); 2. Where the Work involved is not covered by unit prices contained in the Contract Documents, then by a mutually agreed lump sum or unit price (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 11.08.C.2), and shall include the cost of any secondary impacts that are foreseeable at the time of pricing the cost of Extra Work; or 3. Where the Work involved is not covered by unit prices contained in the Contract Documents and the parties do not reach mutual agreement to a lump sum or unit price, then on the basis of the Cost of the Work (determined as provided in Paragraph 12.01) plus a Contractor’s fee for overhead and profit (determined as provided in Paragraph 11.08.C). C. Contractor’s Fee: The Contractor’s fee for overhead and profit will be determined as follows: 1. A mutually acceptable fixed fee; or 2. If a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 779 00 72 00 GENERAL CONDITIONS Page 44 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 a. For costs incurred under Paragraphs 12.01.B.1, 12.01.B.2, and 12.01.B.3, the Contractor’s fee will be 15 percent except for: 1) rental fees for Contractor’s own equipment; and 2) bonds and insurance; b. For costs incurred under Paragraph 12.01.B.4, the Contractor’s fee will be 5 percent; 1) Where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraphs 11.08.C.2.a and 11.08.C.2.b is that the Contractor’s fee will be based on: (1) a fee of 15 percent of the costs incurred under Paragraphs 12.01.B.1, 12.01.B.2, and 12.01.B.3 by the Subcontractor that actually performs the Work, at whatever tier, and (2) with respect to Contractor itself and to any Subcontractors of a tier higher than that of the Subcontractor that actually performs the Work, a fee of 5 percent of the amount (fee plus underlying costs incurred) attributable to the next lower tier Subcontractor; provided, however, in no case shall the cumulative total of fees paid be in excess of 25% of the Cost of the Work; c. No fee will be payable on the basis of costs itemized under Paragraphs 12.01.B.5, 12.01.B.6, and 12.01.C; d. The amount of credit to be allowed by Contractor to City for any change which results in a net decrease in Cost of the Work will be the amount of the actual net decrease in Cost of the Work and a deduction of an additional amount equal to 5 percent of such actual net decrease in Cost of the Work; and 11.09 Change of Contract Time A. The Contract Time may only be changed by a Change Order. B. No extension of the Contract Time will be allowed under a Change Order for Extra Work or for claimed delay unless the Extra Work contemplated or claimed delay is shown to be on the critical path of the Project Schedule or Contractor can show by critical path method analysis how the Extra Work or claimed delay adversely affects the critical path. C. Delay, disruption, and interference in the Work, and any related changes in Contract Time, are addressed in and governed by Paragraph 4.03. 11.10 Notification to Surety A. If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Time), the giving of any such notice will be Contractor’s responsibility. The amount of each applicable bond will be adjusted by the Contractor to reflect the effect of any such change. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 780 00 72 00 GENERAL CONDITIONS Page 45 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 ARTICLE 12 – COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK; PLANS QUANTITY MEASUREMENT 12.01 Cost of the Work A. Purposes for Determination of Cost of the Work: The term “Cost of the Work” means the sum of all costs necessary for the proper performance of the Work at issue, as further defined below. The provisions of this Paragraph 12.01 are used for two distinct purposes: 1. To determine Cost of the Work when Cost of the Work is a component of the Contract Price, under cost-plus-fee, time-and-materials, or other cost-based terms; or 2. When needed to determine the value of a Change Order. When the value of any such adjustment is determined on the basis of Cost of the Work, Contractor is entitled only to those additional or incremental costs required because of the change in the Work or because of the event giving rise to the adjustment. B. Costs Included: The term, “Cost of the Work” means the sum of all costs, except those excluded in Paragraph 12.01.C, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work is covered by a Change Order, the costs reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work. Such costs shall be in amounts no higher than those calculated based on the prevailing wage rates contained in the Contract Documents, shall not include any of the costs itemized in Paragraph 12.01.C, and may include as applicable, but not be limited to the following items: 1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by City and Contractor. Such employees shall include, without limitation, superintendents, foremen, safety managers, safety representatives, and other personnel employed full time on the Work. Payroll costs for employees not employed full time on the Work will be apportioned on the basis of their time spent on the Work. Payroll costs shall include, salaries and wages plus the cost of fringe benefits, which include social security contributions, unemployment, excise, and payroll taxes, workers’ compensation, health and retirement benefits, sick leave, and vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours on Business Days, during Weekend Working Hours, or on a state or federal holiday observed by the City, shall be included in the above to the extent authorized by City. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers’ field services required in connection therewith. 3. Rentals of all construction equipment and machinery and the parts thereof, whether rented from Contractor or others, in accordance with rental agreements approved in writing by City, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. and the Contract Documents. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 781 00 72 00 GENERAL CONDITIONS Page 46 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 4. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by City, Contractor shall obtain competitive bids from subcontractors acceptable to City . Contractor shall deliver such bids to City, which will then determine, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor’s Cost of the Work and fee will be determined in the same manner as Contractor’s Cost of the Work and fee as provided in this Paragraph 12.01 and Paragraph 11.08.C. 5. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed or retained for services specifically related to the Work and specifically included in the agreed upon schedule of job classifications referred to in Paragraph 12.01.B.1 or otherwise specifically included in the Contract. 6. Supplemental costs consisting of the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor’s employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, and temporary office or facilities at the Site, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, as imposed by Laws and Regulations, excluding those taxes for which an exemption is available as described in Paragraph 7.12. d. Deposits lost for causes other than the negligence or willful misconduct of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. e. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work, provided such losses and damages have resulted from causes other than the negligence or willful misconduct of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses include settlements made with the written consent and approval of CityCity. No such losses, damages, and expenses will be included in the Cost of the Work for the purpose of determining Contractor’s fee. f. The cost of utilities, fuel, and sanitary facilities at the Site. g. Minor expenses such as communication service at the Site, express and courier services, and similar petty cash items in connection with the Work. h. The costs of premiums for all bonds and insurance that Contractor is required by the Contract Documents to purchase and maintain. C. Costs Excluded: The term Cost of the Work does not include any of the following items: DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 782 00 72 00 GENERAL CONDITIONS Page 47 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 1. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor’s principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 12.01.B.1 or otherwise specifically covered in the Contract. The payroll costs and other compensation excluded here are to be considered administrative costs covered by the Contractor’s fee. 2. Expenses of Contractor’s principal and branch offices other than Contractor’s office at the Site. 3. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the acts, omissions, negligence or willful misconduct of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind. D. Contractor’s Fee 1. When the Work as a whole is performed on the basis of cost-plus-a-fee, then: a. Contractor’s fee for the Work set forth in the Contract Documents as of the Effective Date of the Agreement will be determined as set forth in the Contract. b. for any Work covered by a Change Order for an adjustment in Contract Price on the basis of Cost of the Work, Contractor’s fee will be determined as set forth in Paragraph 11.08.C. 2. When the Work as a whole is performed on the basis of a stipulated sum, or any other basis other than cost-plus-a-fee, then Contractor’s fee for any Work covered by a Change Order for an adjustment in Contract Price on the basis of Cost of the Work will be determined in accordance with Paragraph 11.08.C.2. E. Documentation and Audit: Whenever the Cost of the Work for any purpose is to be determined pursuant to this Article 12, Contractor and pertinent Subcontractors will establish and maintain records of the costs in accordance with generally accepted accounting practices, and submit in a form acceptable to City an itemized cost breakdown together with supporting data. Subject to prior written notice, City will be afforded reasonable access, during normal business hours, to all Contractor’s accounts, records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to the Cost of the Work and Contractor’s fee. Contractor shall preserve all such documents for a period of three years after the final payment by City. Contractor will be responsible for ensuring that pertinent Subcontractors will afford such access to City, and preserve such documents, to the same extent as is required of Contractor. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 783 00 72 00 GENERAL CONDITIONS Page 48 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 12.02 Allowances A. Specified Allowance: It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to City. B. Cash Allowances: Contractor agrees that: 1. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and 2. Contractor’s costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances, have been included in the Contract Price and not in the allowances, and no demand for additional payment for any of the foregoing will be valid. C. Contingency Allowance: Contractor agrees that a contingency allowance, if any, is for the sole use of City. D. Prior to final payment, an appropriate Change Order will be issued to reflect actual amounts due Contractor for Work covered by allowances, and the Contract Price will be correspondingly adjusted. 12.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by City subject to the provisions of Paragraph 10.03. C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and profit for each separately identified item. Work described in the Contract Documents, or reasonably inferred as required for a functionally complete installation, but not identified in the listing of unit price items shall be considered incidental to Unit Price Work listed and the cost of incidental work included as part of the unit price. D. Adjustments in Contract Price 1. City may make an adjustment in the Contract Price in accordance with Paragraph 11.08 if: a. the quantity of the item of Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and b. there is no corresponding adjustment with respect to any other item of Work. 2. Adjusted unit prices will apply to all units of that item. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 784 00 72 00 GENERAL CONDITIONS Page 49 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 E. Increased or Decreased Quantities: The City reserves the right to order Extra Work in accordance with Paragraph 11.04. 1. If the changes in quantities or the alterations do not significantly change the character of the Work under the Contract Documents, the altered Work will be paid for at the Contract unit price. 2. If the changes in quantities or alterations materially and significantly change the character of the Work, the Contract will be amended by a Change Order. 3. If no unit prices exist, thisany increase or decrease in quantities will be considered Extra Work and the Contract will be amended by a Change Order in accordance with Article 11. 4. A significant change in the character of Work occurs when: a. the character of work for any Item as altered differs materially or significantly in kind or nature from that in the Contract; or b. a Major Item of work varies by more than 25% from the original Contract quantity. 5. When the quantity of work to be done under any Major Item of the Contract is more than 125% of the original quantity stated in the Contract, then either party to the Contract may request an adjustment to the unit price on the portion of the work that is above 125%. 6. When the quantity of work to be done under any Major Item of the Contract is less than 75% of the original quantity stated in the Contract, then either party to the Contract may request an adjustment to the unit price. 12.04 Plans Quantity Measurement for Unclassified Excavation or Embankment A. Plans quantities may or may not represent the exact quantity of Work performed or material moved, handled, or placed during the term of the Contract. The estimated bid quantities are designated as final payment quantities, unless revised in accordance with the Contract. B. If the total actual quantity measured for an individual item varies by more than 25% (or as stipulated under “Price and Payment Procedures” for specific Items) from the total estimated quantity for an individual Item originally shown in the Contract Documents, an adjustment may be made to the quantity of authorized Work done for payment purposes. The party to the Contract requesting the adjustment will provide field measurements and calculations showing the final quantity for which payment will be made. Payment for revised quantity will be made at the unit price bid for that Item, except as provided for in Article 11. C. When quantities are revised by a change in design approved by the City, by Change Order, or to correct an error, or to correct an error on the plans, the plans quantity will be increased or decreased by the amount identified in the approved change, and the 25% variance provisions of Paragraph 12.04.B will apply to the new plans quantity. D. If the total Contract quantity multiplied by the unit price bid for an individual Item is less than $250 and the Item is not originally a plans quantity Item, then the Item may be paid as a plans quantity Item if the City and Contractor agree in writing to fix the final quantity as a plans quantity. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 785 00 72 00 GENERAL CONDITIONS Page 50 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 E. For callout work or non-site specific Contracts, the plans quantity measurement requirements are not applicable. ARTICLE 13 – TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Access to Work A. City and its Engineer, consultants, representatives, employees, and independent testing laboratories, and authorities having jurisdiction shall have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs so that they may comply with such procedures and programs as applicable. 13.02 Tests and Inspections A. Contractor shall give City timely notice of readiness of the Work (or specific parts thereof) for all required inspections and tests and shall cooperate with inspection and testing personnel to facilitate required inspections and tests. B. If the Contract Documents or any Laws and Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish City the required certificates of inspection, testing or approval, except that those fees specifically identified in the Supplementary Conditions or any Texas Department of Licensure and Regulation (TDLR) inspections, which shall will be paid as described in the Supplementary Conditions. C. Contractor shall be responsible for arranging, obtaining, and paying for all inspections, tests, re-tests, and approvals required: 1. by the Contract Documents, unless the Contract Documents expressly allocate responsibility for a specific inspection or test to City; 2. to attain City’s acceptance of materials or equipment to be incorporated in the Work; 3. by manufacturers of equipment furnished under the Contract Documents; 4. for testing, adjusting, and balancing of mechanical, electrical, and other equipment to be incorporated into the Work; and 5. for acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor’s purchase thereof for incorporation in the Work. Such inspections and tests will be performed by independent inspectors, testing laboratories, or other qualified individuals or entities acceptable to City. D. City may arrange for the services of an independent testing laboratory (“Testing Lab”) to perform any inspections or tests (“Testing”) for any part of the Work, as determined solely by City. 1. City will coordinate such Testing to the extent possible, with Contractor; DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 786 00 72 00 GENERAL CONDITIONS Page 51 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 2. Should any Testing under this Section 13.03.D result in a “fail”, “did not pass” or other similar negative result, the Contractor shall be responsible for paying for any and all retests. Contractor’s cancellation without cause of City initiated Testing shall be deemed a negative result and require a retest. 3. Any amounts owed for any retest under this Section 13.02.D shall be paid directly to the Testing Lab by Contractor. City will forward all invoices for retests to Contractor. 4. If Contractor fails to pay the Testing Lab, City will not issue Final Payment until the Testing Lab is paid. E. If the Contract Documents require the Work (or part thereof) to be approved by City or another designated individual or entity, then Contractor shall assume full responsibility for seeking and obtaining such approvals. F. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without the written approval of City, Contractor shall, if requested by City, uncover such Work for observation. Such uncovering and the recovering of such Work will be at Contractor’s expense. 13.03 Defective Work A. Contractor’s Obligation: It is Contractor’s obligation to assure that the Work is not defective. B. City’s Authority: City has the authority to determine whether Work is defective, and to reject defective Work. C. Notice of Defects: Written notice of all defective Work of which City has actual knowledge will be given to Contractor. D. Correction, or Removal and Replacement: Promptly after receipt of written notice of defective Work, Contractor shall correct all such defective Work, whether or not fabricated, installed, or completed, or, if City has rejected the defective Work, shall remove the defective Work from the Project and replace it with Work that is not defective. Failure to require the removal of any defective Work shall not constitute acceptance of such Work. E. Preservation of Warranties: When correcting defective Work, Contractor shall take no action that would void or otherwise impair City’s warranty and guarantee, if any, on said Work. F. Costs and Damages: In addition to its correction, removal, and replacement obligations with respect to defective Work, Contractor shall pay all claims, costs, losses, and damages arising out of or relating to defective Work, including but not limited to the cost of the inspection, testing, correction, removal, replacement, or reconstruction of such defective Work, fines levied against Contractor or City by governmental authorities because the Work is defective, and the costs of repair, replacement or reconstruction of work of others resulting from defective Work. 13.04 Rejecting Defective Work A. City will have authority to reject Work which City believes to be defective or will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. City will have authority to conduct special inspection or testing DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 787 00 72 00 GENERAL CONDITIONS Page 52 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 of the Work as provided in this Article 13, whether or not the Work is fabricated, installed, or completed. 13.05 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, City prefers to accept it, City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to City’s evaluation of and determination to accept such defective Work, and for the diminished value of the Work to the extent not otherwise paid by Contractor. If any such acceptance occurs prior to Final Acceptance, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of the Work so accepted. 13.06 Uncovering Work A. City has the authority to require additional inspection or testing of the Work, whether or not the Work is fabricated, installed, or completed. B. If any Work is covered contrary to the Contract Documents or specific instructions of City and if requested by City, Contractor shall uncover such Work for City’s observation, inspection or testing and then replace the covering, all at Contractor’s expense. C. If City considers it necessary or advisable that covered Work be observed by City or inspected or tested by others, then Contractor, at City’s request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as City may require, that portion of the Work in question, and provide all necessary labor, material, and equipment. 1. If it is found that the uncovered Work is defective, Contractor shall be responsible for all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others). City shall be entitled to accept defective Work in accordance with Paragraph 13.05 and in such case Contractor shall still be responsible for all costs associated with exposing, observing, and testing defective Work. 2. If the uncovered Work is not found to be defective, Contractor shall be allowed an extension of the Contract Time to the extent directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. 13.07 City May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or Contractor fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, then City may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been corrected or eliminated; however, this right of City to stop the Work will not give rise to any duty on the part of City to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or any employee or agent of, any of them. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 788 00 72 00 GENERAL CONDITIONS Page 53 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 13.08 City May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from City to correct defective Work, or to remove and replace defective Work as required by City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, then City may, after providing 7 days’ advance written notice to Contractor, correct or remedy any such deficiency. B. In connection with such corrective or remedial action, City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, and incorporate in the Work all materials and equipment stored at the Site or for which City has paid Contractor but which are stored elsewhere. Contractor shall allow CityCity, City’s representatives, agents and employees, and City’s other contractors access to the Site to enable City to exercise the rights and remedies under this Paragraph 13.08. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court, or arbitration or other dispute resolution costs) incurred or sustained by City in exercising the rights and remedies under this Paragraph 13.08 will be the responsibility of and will be charged against Contractor. A Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses and damages will include, but not be limited to, all costs of repair or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor’s defective Work. D. Contractor shall not be allowed an extension of the Contract Time because of any delay in the performance of the Work attributable to the exercise by City of City’s rights and remedies under this Paragraph 13.08. ARTICLE 14 – PAYMENTS TO CONTRACTOR; COMPLETION; CORRECTION PERIOD 14.01 Progress Payments A. Basis for Progress Payments: The Schedule of Values established as provided in Paragraph 2.03 will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to City. Progress payments for Unit Price Work will be based on the number of units completed during the pay period, as determined under the provisions of Paragraph 12.03. Progress payments for cost-based Work will be based on Cost of the Work completed by Contractor during the pay period. B. Applications for Payments 1. Contractor is responsible for providing all information as required to become a vendor of the City. 2. At least 20 days before the date established in the General Requirements for each progress payment (but not more often than once a month), Contractor shall submit to City for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 789 00 72 00 GENERAL CONDITIONS Page 54 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 3. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment must also be accompanied by: (a) bill of sale, invoice, or purchase order payments, copies of cancelled checks or other documentation establishing full payment by Contractor for the materials and equipment; (b) at City’s request, documentation warranting that City has received the materials and equipment free and clear of all Liens; and (c) evidence that the materials and equipment are covered by appropriate property insurance, or other arrangements to protect City’s interest therein, all of which must be satisfactory to City. 4. Beginning with the second Application for Payment, each Application must include an affidavit of Contractor stating that all previous progress payments received on account of the Work by Contractor have been applied to discharge Contractor’s legitimate obligations associated with prior Applications for Payment. 5. The amount of retainage with respect to progress payments will be as stipulated in the Contract Documents. C. Review of Applications 1. City will, after receipt of each Application for Payment, either indicate in writing it will proceed to process the Application for Payment or return the Application to Contractor indicating reasons for refusing payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. City’s processing of any payment requested in an Application for Payment will be based on City’s observations of the executed Work, and on City’s review of the Application for Payment and the accompanying data and schedules, that based City’s actual knowledge: a. the Work has progressed to the point indicated; and b. the quality and/or quantity of the Work is generally in accordance with the Contract Documents (subject to any subsequent evaluations of the Work, an evaluation of the Work as a functioning whole prior to or upon Final Acceptance, the results of any subsequent tests or inspections called for in the Contract Documents, a final determination of quantities and classifications for Unit Price Work under Paragraphs 10.05 and 12.03, and any other qualifications stated). 3. Processing any such payment will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work; or b. there are no other matters or issues between the parties that might entitle Contractor to be paid additionally by City or entitle City to withhold payment to Contractor; or c. Contractor hashas complied with Laws and Regulations applicable to Contractor’s performance of the Work. 4. City may refuse to process or pay the whole or any part of any payment because of subsequently discovered evidence or the results of subsequent inspections or tests, and DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 790 00 72 00 GENERAL CONDITIONS Page 55 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 may revise or revoke any such payment previously made, to such extent as may be necessary to protect City from loss because: a. the Work is defective, or the completed Work has been damaged by the Contractor or his subcontractors, requiring correction or replacement; b. there are discrepancies in quantities contained in previous applications for payment; c. the Contract Price has been reduced by Change Orders; d. City has been required to correct defective Work in accordance with Paragraph 1313.08, or has accepted defective Work pursuant to Paragraph 13.05; e. City has been required to remove or remediate a Hazardous Environmental Condition for which Contractor is responsible; or f. City has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A that would constitute a default by Contractor and therefore justify termination for cause under the Contract Documents. D. Retainage: 1. For all contracts, retainage shall be five percent (5%). E. Liquidated Damages: For each calendar day that any work shall remain uncompleted after the time specified in the Contract Documents, the sum per day specified in the Agreement will be paid by the Contractor to the City, not as a penalty, but as liquidated damages suffered by the City. If feasible, the parties may agree to have the liquidated damages deducted from any amounts owned to Contractor by City instead of being paid directly to City by Contractor. F. Payment: Contractor will be paid pursuant to the requirements of this Article 14 and payment will become due in accordance with the Contract Documents. G. Reduction in Payment 1. City may refuse to make payment of the of the amount requested because: a. Claims have been made against City based on Contractor’s performance or furnishing of the Work, or City has incurred costs, losses, or damages resulting from Contractor’s performance or furnishing of the Work, including but not limited to claims, costs, losses, or damages from workplace injuries, adjacent property damage, non-compliance with Laws and Regulations, or patent infringement; b. Contractor has failed to take reasonable and customary measures to avoid damage, delay, disruption, and interference with other work at or adjacent to the Site; c. Contractor has failed to provide and maintain required bonds or insurance; d. City has been required to remove or remediate a Hazardous Environmental Condition for which Contractor is responsible; e. City has incurred extra charges or engineering costs related to submittal reviews, evaluations of proposed substitutes, tests and inspections, or return visits to manufacturing or assembly facilities; f. The Work is defective, requiring correction or replacement; DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 791 00 72 00 GENERAL CONDITIONS Page 56 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 g. City has been required to correct defective Work in accordance with Paragraph 13.08, or has accepted defective Work pursuant to Paragraph 13.05; h. The Contract Price has been reduced by Change Orders; i. An event has occurred that would constitute a default by Contractor and therefore justify a termination for cause; j. Liquidated or other damages have accrued as a result of Contractor’s failure to achieve Milestones or Final Acceptance of the Work; k. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to City to secure the satisfaction and discharge of such Liens; l. Other items entitle City to a set-off against the payment amount requested; or m. City has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02. 2. If City refuses to make payment of the amount requested, City will give Contractor written notice stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. City shall pay Contractor the amount so withheld, or any adjustment thereto agreed to by City and Contractor, within a reasonable time after Contractor remedies the reasons for such action to the satisfaction of City and City has confirmed such action. 14.02 Contractor’s Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to City no later than the time of payment free and clear of all Liens. 14.03 Partial Utilization A. Prior to Final Acceptance of all the Work, City may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which City determines constitutes a separately functioning and usable part of the Work that can be used by City for its intended purpose without significant interference with Contractor’s performance of the remainder of the Work. City at any time may notify Contractor in writing to of any such part of the Work which City determines to be ready for its intended use. In addition, City may request in writing that Contractor permit City to use or occupy any such part of the Work that City believes to be substantially complete, subject to the following conditions: 1. At any time, Contractor may notify City that Contractor considers any such part of the Work ready for its intended use. 2. Within a reasonable time after notification as enumerated in Paragraph 14.03, City and Contractor shall make an inspection of that part of the Work to determine its status of completion. If City does not consider that part of the Work to be substantially complete, City will notify Contractor in writing giving the reasons therefor. 3. Partial Utilization by City will not constitute Final Acceptance by City. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 792 00 72 00 GENERAL CONDITIONS Page 57 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 14.04 Final Inspection A. Upon written notice from Contractor that the entire Work is complete in accordance with the Contract Documents: 1. City will promptly schedule a Final Inspection with Contractor. 2. City will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. B. City reserves the right to deny request for Final Inspection if City determines that the entire Work is not sufficiently complete to warrant a Final Inspection. 14.05 Final Acceptance A. Upon completion by Contractor to City’s satisfaction, of any and all Work in accordance with the Contract Documents, including any corrections or additional Work identified in the Final Inspection and delivery of all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurances, certificates of inspection, annotated record documents and other required documents in accordance with the Contract Documents, City will issue to Contractor a letter of Final Acceptance. 14.06 Final Payment A. Application for Payment 1. Upon receipt of a letter of Final Acceptance from City, Contractor may make application for Final Payment following the procedures for requesting payments in accordance with the Contract Documents. 2. The final Application for Payment must be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 6.03; b. consent of the surety, if any, to final payment; c. satisfactory evidence that all title issues have been resolved such that title to all Work, materials, and equipment has passed to City free and clear of any Liens or other title defects or will so pass upon final payment. d. a list of all Contract Claims or Damage Claims against City that Contractor believes are unsettled; and e. affidavits of payments and complete and legally effective releases or waivers (satisfactory to City) of all Lien rights arising out of the Work, and of Liens filed in connection with the Work. B. Payment Becomes Due: The final payment requested by Contractor, less previous payments made and less any sum to which City is entitled, including but not limited to liquidated damages, will become due and payable: 1. After City’s acceptance of the Application for Payment and accompanying documentation; and DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 793 00 72 00 GENERAL CONDITIONS Page 58 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 2. After all Damage Claims have been resolved: a. directly by the Contractor; or b. Contractor provides evidence that the Damage Claim has been reported to Contractor’s insurance provider for resolution. The making of the final payment by the City shall not relieve the Contractor of any guarantees or other requirements of the Contract that continue thereafter. 14.07 Final Completion Delayed and Partial Retainage Release A. If final completion of the Work is significantly delayed, and if City so confirms, City may, upon receipt of Contractor’s final Application for Payment, 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 to be held by City for Work not fully completed or corrected is less than the retainage stipulated in Paragraph 14.01.D, and if bonds have been furnished as required in Paragraph 6.02, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to City with the Application for such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Contract Claims. B. Partial Retainage Release. If the Contract provides for separate establishment and maintenance periods and/or test and performance periods following the completion of all other construction in the Contract Documents for all Work locations, the City may release a portion of the amount retained provided that all other work is completed as determined by the City. Before the release, all submittals and final quantities must be completed and accepted for all other work. An amount sufficient to ensure Contract compliance will be retained. 14.08 Waiver of Claims A. The acceptance of final payment will constitute a waiver and release by Contractor of all claims, rights, causes of action, or liabilities, including Contract Claims, against City arising out of, related to or under the Contract or for any act, omission or neglect of City. 14.09 Correction Period A. If within two (2) years after the date of Final Acceptance (or such longer period of time as may be prescribed by the Contract Documents) any Work has been found to be defective, or Contractor’s repair of any damages to the Site, adjacent areas, or areas made available for Contractor’s use by City has been found to be defective, then after receipt of City’s written notice of defect, Contractor shall promptly, without cost to City and in accordance with City’s written instructions: 1. correct the defective repairs to the Site or such adjacent areas, or areas made available for Contractor’s use by City; 2. correct such defective Work; 3. remove the defective Work from the Project and replace it with Work that is not defective, if the defective Work has been rejected by City, and DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 794 00 72 00 GENERAL CONDITIONS Page 59 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others, or to other land or areas resulting from the corrective measures. B. If Contractor does not promptly comply with the terms of City’s written instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. Contractor shall pay all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others). C. In special circumstances where a particular item of equipment is placed in continuous service before Final Acceptance of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected, repaired or removed and replaced under this Paragraph 14.09, the correction period hereunder with respect to such Work may be extended for an additional period of one year after the end of the initial correction period. E. Contractor’s obligations under this paragraph are in addition to all other obligations and warranties. The provisions of this Paragraph 14.09 are not to be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitation or repose. ARTICLE 15 – SUSPENSION OF WORK AND TERMINATION 15.01 City May Suspend Work A. At any time and without cause, City may suspend the Work or any portion thereof by written notice to Contractor. City may fix the date on which Work will be resumed in such notice, and Contractor shall resume the Work on the date so fixed. During a temporary suspension of the Work covered by these Contract Documents, for any reason, the City will make no extra payment for stand-by time of construction equipment and/or construction crews. B. Should the Contractor not be able to complete a portion of the Project due to causes beyond the control of and without the fault or negligence of the Contractor, and should it be determined by mutual consent of the Contractor and City that a solution to allow construction to proceed is not available within a reasonable period of time, Contractor may request an extension in Contract Time, directly attributable to any such suspension. C. If it should become necessary to suspend the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily nor become damaged in any way; Contractor shall take every precaution to prevent damage or deterioration of the work performed; and Contractor shall provide suitable drainage about the work, and erect temporary structures where necessary. D. Contractor may be reimbursed for the cost of moving its equipment off the job and returning the necessary equipment to the job when it is determined by the City that construction may be resumed. Such reimbursement shall be based on actual cost to the Contractor of moving the DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 795 00 72 00 GENERAL CONDITIONS Page 60 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 equipment and no profit or overhead will be allowed. Reimbursement may not be allowed if the equipment is moved to another construction project for the City. 15.02 City May Terminate for Cause A. The occurrence of any one or more of the following events by way of example, but not of limitation, may justify termination for cause: 1. Contractor’s persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment, or failure to adhere to the Project Schedule established under Paragraph 2.06 as adjusted from time to time pursuant to Paragraph 7.05); 2. Failure of Contractor to perform or otherwise to comply with a material term of the Contract; or 3. Contractor’s disregard of Laws and Regulations of any public body having jurisdiction; or 4. Contractor’s repeated disregard of the authority of City; or 5. Contractor’s failure to promptly make good any defect in materials or workmanship, or defects of any nature, the correction of which has been directed in writing by the City; or 6. Substantial indication that the Contractor has made an unauthorized assignment of the Contract or any funds due therefrom for the benefit of any creditor or for any other purpose; or 7. Substantial indication that the Contractor has become insolvent or bankrupt, or otherwise financially unable to perform the Work satisfactorily; or 8. Contractor commences legal action in a court of competent jurisdiction against the City. B. If one or more of the events identified in Paragraph 15.02.A occurs, City will provide written notice to Contractor and Surety to arrange a conference with Contractor and Surety to address Contractor’s failure to perform the Work. The conference shall be held not later than 15 days after receipt of notice. by both Contractor and surety. 1. If the City, the Contractor, and the Surety do not agree to allow the Contractor to proceed to perform the Contract, the City may, to the extent permitted by Laws and Regulations, declare a Contractor default and formally terminate the Contractor's right to complete the Contract. Contractor default shall not be declared earlier than 20 days after the Contractor and Surety have received notice of the conference to address Contractor's failure to perform the Work. 2. If Contractor's services are terminated, Surety shall be obligated to take over and perform the Work. If Surety does not commence performance thereof within 15 consecutive calendar days after date of an additional written notice demanding Surety’s performance of its obligations, then City, without process or action at law, may take over any portion of the Work and complete it as described below. a. If City completes the Work, City may exclude Contractor and Surety from the Site and take possession of the Work, and all materials and equipment stored at the Site DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 796 00 72 00 GENERAL CONDITIONS Page 61 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 or for which City has paid Contractor, but which are stored elsewhere, and the Work as City may deem expedient. 3. Whether City or Surety completes the Work, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds the cost to complete the Work, including all related claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals) sustained by City, such excess will be paid to Contractor. If the cost to complete the Work including such related claims, costs, losses, and damages exceeds such unpaid balance, Contractor shall pay the difference to City. Such claims, costs, losses, and damages incurred by City will be incorporated in a Change Order, provided that when exercising any rights or remedies under this Paragraph 15.02, City shall not be required to obtain the lowest price for the Work performed. 4. Neither City, nor any of its respective consultants, agents, officers, elected or appointed officials, directors or employees shall be in any way liable or accountable to Contractor or Surety for the method by which the completion of the said Work, or any portion thereof, may be accomplished or for the price paid therefor. 5. City, notwithstanding the method used in completing the Contract, shall not forfeit the right to recover damages from Contractor or Surety for Contractor's failure to timely complete the entire Contract. Contractor shall not be entitled to any claim, counterclaim or offset on account of the method used by City in completing the Contract. 6. Maintenance of the Work shall continue to be Contractor's and Surety's responsibilities as provided for in the bond requirements of the Contract Documents or any special guarantees provided for under the Contract Documents or any other obligations otherwise under the Contract or prescribed by law. C. Notwithstanding Paragraph 15.02.B, Contractor’s services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. D. Where Contractor’s services have been so terminated by City, the termination will not affect any rights or remedies of City against Contractor then existing or which may thereafter accrue, or any rights or remedies of City against Contractor or Surety. Any retention or payment of money due Contractor by City will not release Contractor from liability. E. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 6.02, the termination procedures of that bond shall not supersede the provisions of this Article 15. 15.03 City May Terminate for Convenience A. City may, without cause and without prejudice to any other right or remedy of City, terminate the Contract, in whole or in part. Any termination shall be affected by giving notice of the termination to the Contractor specifying the extent to which performance of Work under the contract is terminated, and the date upon which such termination becomes effective. Notice shall be deemed validly given if given in accordance with Paragraph 17.01.A. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 797 00 72 00 GENERAL CONDITIONS Page 62 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 B. After a notice of termination, has been given, and except as otherwise directed by the City, the Contractor shall: 1. stop work under the Contract on the date and to the extent specified in the notice of termination; 2. place no further orders or subcontracts for materials, services or facilities except as may be necessary for completion of such portion of the Work under the Contract as is not terminated; 3. terminate all orders and subcontracts to the extent that they relate to the performance of the Work terminated by notice of termination; 4. transfer title to the City and deliver in the manner, at the times, and to the extent, if any, directed by the City: a. the fabricated or unfabricated parts, Work in progress, completed Work, supplies and other material produced as a part of, or acquired in connection with the performance of, the Work terminated by the notice of the termination; and b. the completed, or partially completed plans, drawings, information and other property which, if the Contract had been completed, would have been required to be furnished to the City. 5. complete performance of such Work as shall not have been terminated by the notice of termination; and 6. take such action as may be necessary, or as the City may direct, for the protection and preservation of the property related to the Contract that is in the possession of the Contractor and in which the City has or may acquire the rest. C. At a time not later than 30 days after the termination date specified in the notice of termination, the Contractor may submit to the City a list, certified as to quantity and quality, of any or all items of termination inventory not previously disposed of in accordance with the Contract, exclusive of items the disposition of which has been directed or authorized by City. D. Not later than 15 days after Contractor’s submission of the certified list to City pursuant to Paragraph 15.03.C, the City shall accept title to such items, subject to verification of the list by the City upon removal of the items or,. If the items are stored, then City shall have 45 days after submission of the list, to verify the list submitted and accept title to such items. Any necessary adjustments to correct the list as submitted, shall be made prior to final settlement. E. Not later than 60 days after the notice of termination has been given, the Contractor shall submit hisits termination claim to the City in the form and with the certification prescribed by the City. Unless an extension request is made in writing within such 60-day period by the Contractor, and granted by the City, any and all such claims of Contractor that are not submitted to City within such 60-day period shall be conclusively deemed waived. F. Should a termination claim be timely submitted to the City, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 798 00 72 00 GENERAL CONDITIONS Page 63 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 and profit on such Work calculated and determined in accordance with the Contract Documents; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses calculated and determined in accordance with the Contract Documents; and 3. reasonable expenses directly attributable to reasonable and necessary wind-down and termination activities, without any overhead or profit. G. In the event of the failure of the Contractor and City to agree upon the whole amount to be paid to the Contractor by reason of the termination of the Work, the City shall determine, on the basis of information submitted and available to it, the amount, if any, due to the Contractor by reason of the termination and City shall pay to the Contractor the amounts so determined. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of, related to or resulting from such termination. ARTICLE 16 – RESOLUTION OF DISPUTES 16.01 Methods and Procedures A. Either City or Contractor may request mediation of any Contract Claim submitted for a decision under Paragraph 11.07 before such decision becomes final and binding. The request for mediation shall be submitted to the other party to the Contract. Timely submission of the request shall stay the effect of Paragraph 11.07.E. B. City and Contractor shall participate in the mediation process in good faith. The process shall be commenced within 60 calendar days of filing of the request. C. The parties shall agree on a mediator; however, if they cannot agree within 14 calendar days then the Denton County Alternative Dispute Resolution Program (“DCAP”) shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party, or the mediator, states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session. All costs of mediation shall be borne equally by the parties. D. All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. E. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 799 00 72 00 GENERAL CONDITIONS Page 64 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 F. If the Contract Claim is not resolved by mediation, City’s action under Paragraph 11.07.C or a denial pursuant to Paragraphs 11.07.C.3 or 11.07.D shall become final and binding 30 days after termination of the mediation unless, within that time period, City or Contractor: 1. elects in writing to invoke any other dispute resolution process provided for in the Supplementary Conditions; or 2. agrees with the other party to submit the Contract Claim to another dispute resolution process; or 3. gives written notice to the other party of the intent to submit the Contract Claim to a court of competent jurisdiction as set forth within the Contract Documents. ARTICLE 17 – MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract requires the giving of written notice, it will be deemed to have been validly given if delivered: 1. in person, by a commercial courier service or otherwise, if to City, to the duly authorized representative of City identified in the Contract Documents or to City’s Project Manager or, if to Contractor, to a member of the firm or to an officer of the corporation for whom it is intended; or 2. by registered or certified mail, postage prepaid, to the recipient’s place of business; or 3. by e-mail to the recipient. 17.02 Computation of Time A. When any period of time is referred to in the Contract by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day that is a state or federal holiday observed by the City, the next Business Day shall become the last day of the period. 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws and Regulations, in equity, by special warranty or guarantee, or by other provisions of the Contract. The provisions of this Paragraph 17.03 will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. 17.04 Limitation of Damages A. With respect to any and all claims, disputes subject to final resolution, and other matters at issue, neither City, nor any of its officers, directors, elected or appointed officials, members, partners, employees, agents, consultants, or subcontractors, shall be liable to Contractor for any claims, costs, losses, or damages sustained by Contractor on or in connection with any other project or anticipated project. Further, the Contractor may only claim and the City may only be liable for those damages that are set forth in Subchapter I, Chapter 271 of the Texas DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 800 00 72 00 GENERAL CONDITIONS Page 65 of 65 CITY OF DENTON STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS Revised November 20, 2020 Local Government Code and the City shall not be liable for any consequential damages, exemplary damages or damages for unabsorbed home office overhead. 17.05 No Waiver A. A party’s non-enforcement of any provision will not constitute a waiver of that provision, nor will it affect the enforceability of that provision or of the remainder of this Contract. B. The City has not waived its sovereign immunity except as expressly set forth in Subchapter I, Chapter 271 of the Texas Local Government Code or as expressly waived by other statute. 17.06 Survival of Obligations All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract, as well as all continuing obligations indicated in the Contract, will survive final payment, completion, and Final Acceptance of the Work or termination of the Contract or of the services of Contractor. 17.07 Assignment of Contract A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party to this Contract of any rights under or interests in the Contract will be binding on the other party without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract. 17.08 Successors and Assigns A. City and Contractor each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 17.09 Governing Law A. The Contract shall be construed in accordance with the laws of the State of Texas without regard to conflicts of law principles. 17.10 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 801 00 73 00 SUPPLEMENTARY CONDITIONS Page 1 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 SECTION 00 73 00 2 SUPPLEMENTARY CONDITIONS 3 TO 4 GENERAL CONDITIONS 5 6 Supplementary Conditions 7 8 These Supplementary Conditions modify and supplement Section 00 72 00 - General Conditions, and other 9 provisions of the Contract Documents as indicated below. All provisions of the General Conditions that are 10 modified or supplemented remain in full force and effect as so modified or supplemented. All provisions 11 of the General Conditions which are not so modified or supplemented remain in full force and effect. 12 13 Defined Terms 14 15 The terms used in these Supplementary Conditions which are defined in the General Conditions have the 16 meaning assigned to them in the General Conditions, unless specifically noted herein. 17 18 Modifications and Supplements 19 20 The following are instructions that modify or supplement specific paragraphs in the General Conditions and 21 other Contract Documents. 22 23 SC-5.01A 24 25 Easement limits shown on the Drawing are approximate and were provided to establish a basis for bidding. 26 Upon receiving the final easements descriptions, Contractor shall compare them to the lines shown on the 27 Contract Drawings. 28 29 SC-5.01A.1., “Availability of Lands” 30 31 The following is a list of known outstanding right-of-way, and/or easements to be acquired, if any as of 32 May 2022. 33 34 Outstanding Right-Of-Way, and/or Easements to Be Acquired PARCEL NUMBER OWNER TARGET DATE OF POSSESSION PARCEL 04 PE PARCEL 74 PE PARCEL 76 PE PARCEL 85 PE PARCEL 88 PE PARCEL 90 PE PARCEL 91 PE PARCEL 92 PE PARCEL 94 PE PARCEL 95 PE PARCEL 113 PE PARCEL 117 PE Pick'n'Sav Stores, Inc. #96 Arthur W. Hollingsworth Mayhill Denton, LP, a Texas limited partnership CB Green Investments, L.L.C., a Texas limited liablity company Goel Ventures, LLC, a Texas limited liability company GW Ventures Josten's, Inc. Josten's, Inc. Carroll Family Investments, Ltd. GHLDS #2, LLC,a Texas limited liability company Josten's, Inc. Melvin A. Kausen and Marie A. Kausen Family Trust September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 September 2022 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 802 00 73 00 SUPPLEMENTARY CONDITIONS Page 2 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 The Contractor understands and agrees that the dates listed above are estimates only, are not guaranteed, 2 and do not bind the City. 3 4 If Contractor considers the final easements provided to differ materially from the representations on the 5 Contract Drawings, Contractor shall within five (5) Business Days and before proceeding with the Work, 6 notify City in writing associated with the differing easement line locations. 7 8 SC-5.01A.2, “Availability of Lands” 9 10 Utilities or obstructions to be removed, adjusted, and/or relocated 11 12 The following is list of utilities and/or obstructions that have not been removed, adjusted, and/or relocated 13 as of JULY 2021 14 EXPECTED OWNER UTILITY AND LOCATION TARGET DATE OF ADJUSTMENT NONE 15 The Contractor understands and agrees that the dates listed above are estimates only, are not guaranteed, 16 and do not bind the City. 17 18 SC-5.03A., “Subsurface and Physical Conditions” 19 20 The following are reports of explorations and tests of subsurface conditions at the site of the Work: 21 22 A Geotechnical Engineering Study Report No. 103-20-358, dated June 24, 2020, prepared by CMJ 23 Engineering, Inc. a sub-consultant of Kimley-Horn, a consultant of the City, providing additional 24 information on Geotechnical Engineering Study. 25 26 The following are drawings of physical conditions in or relating to existing surface and subsurface 27 structures (except Underground Facilities) which are at or contiguous to the site of the Work: 28 NONE 29 30 SC-5.05 A., “Underground Facilities 31 32 The following are additional resources for identification of Underground Facilities which are at or 33 contiguous to the site of the Work, and which are not necessarily shown in the Drawings: 34 NONE 35 36 SC-5.06A., “Hazardous Environmental Conditions at Site” 37 38 The following are reports and drawings of existing hazardous environmental conditions known to the City: 39 NONE 40 41 SC-6.03A., “Certificates of Insurance” 42 43 The entities listed below are "additional insureds as their interest may appear" including their respective 44 officers, directors, agents and employees. 45 46 (1) City 47 (2) Consultant: Kimley-Horn and Associates, Inc. 48 (3) Other: NONE DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 803 00 73 00 SUPPLEMENTARY CONDITIONS Page 3 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 SC-6.04A., “Contractor’s Insurance” 2 3 The limits of liability for the insurance required by Paragraph GC-6.04 shall provide the following 4 coverages for not less than the following amounts or greater where required by laws and regulations: 5 6 6.04A. Workers' Compensation, under Paragraph GC-6.04A. 7 8 Statutory limits 9 Employer's liability 10 $100,000 each accident/occurrence 11 $100,000 Disease - each employee 12 $500,000 Disease - policy limit 13 14 SC-6.04B., “Contractor’s Insurance” 15 16 6.04B. Commercial General Liability, under Paragraph GC-6.04B. Contractor's Liability Insurance 17 under Paragraph GC-6.04B., which shall be on a per project basis covering the Contractor with 18 minimum limits of: 19 20 $1,000,000 each occurrence 21 $2,000,000 aggregate limit 22 23 The policy must have an endorsement (Amendment – Aggregate Limits of Insurance) making the 24 General Aggregate Limits apply separately to each job site. 25 26 The Commercial General Liability Insurance policies shall provide “X”, “C”, and “U” coverage’s. 27 Verification of such coverage must be shown in the Remarks Article of the Certificate of Insurance. 28 29 SC 6.04C., “Contractor’s Insurance” 30 6.04C. Automobile Liability, under Paragraph GC-6.04C. Contractor’s Liability Insurance under 31 Paragraph GC-6.04C., which shall be in an amount not less than the following amounts: 32 33 (1)Automobile Liability - a commercial business policy shall provide coverage on "Any Auto", 34 defined as autos owned, hired and non-owned. 35 36 $1,000,000 each accident on a combined single limit basis. Split limits are acceptable if limits are at 37 least: 38 39 $250,000 Bodily Injury per person / 40 $500,000 Bodily Injury per accident / 41 $100,000 Property Damage 42 43 SC-6.04D., “Contractor’s Insurance” 44 45 The Contractor’s construction activities will require its employees, agents, subcontractors, equipment, and 46 material deliveries to cross railroad properties and tracks, or perform work within 25 feet of the center line 47 of tracks NONE. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 804 00 73 00 SUPPLEMENTARY CONDITIONS Page 4 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 The Contractor shall conduct its operations on railroad properties in such a manner as not to interfere with, 2 hinder, or obstruct the railroad company in any manner whatsoever in the use or operation of its/their trains 3 or other property. Such operations on railroad properties may require that Contractor to execute a “Right of 4 Entry Agreement” with the particular railroad company or companies involved, and to this end the 5 Contractor should satisfy itself as to the requirements of each railroad company and be prepared to execute 6 the right-of-entry (if any) required by a railroad company. The requirements specified herein likewise relate 7 to the Contractor’s use of private and/or construction access roads crossing said railroad company’s 8 properties. 9 10 The Contractual Liability coverage required by Paragraph 5.04D of the General Conditions shall provide 11 coverage for not less than the following amounts, issued by companies satisfactory to the City and to the 12 Railroad Company for a term that continues for so long as the Contractor’s operations and work cross, 13 occupy, or touch railroad property: 14 15 (1) General Aggregate:$Confirm Limits with Railroad 16 17 (2) Each Occurrence:$Confirm Limits with Railroad 18 19 Required for this Contract X Not required for this Contract 20 21 With respect to the above outlined insurance requirements, the following shall govern: 22 23 1. Where a single railroad company is involved, the Contractor shall provide one insurance policy in 24 the name of the railroad company. However, if more than one grade separation or at-grade 25 crossing is affected by the Project at entirely separate locations on the line or lines of the same 26 railroad company, separate coverage may be required, each in the amount stated above. 27 28 2. Where more than one railroad company is operating on the same right-of-way or where several 29 railroad companies are involved and operated on their own separate rights-of-way, the Contractor 30 may be required to provide separate insurance policies in the name of each railroad company. 31 32 3. If, in addition to a grade separation or an at-grade crossing, other work or activity is proposed on a 33 railroad company’s right-of-way at a location entirely separate from the grade separation or at- 34 grade crossing, insurance coverage for this work must be included in the policy covering the grade 35 separation. 36 37 4. If no grade separation is involved but other work is proposed on a railroad company’s right-of- 38 way, all such other work may be covered in a single policy for that railroad, even though the work 39 may be at two or more separate locations. 40 41 No work or activities on a railroad company’s property to be performed by the Contractor shall be 42 commenced until the Contractor has furnished the City with an original policy or policies of the insurance 43 for each railroad company named, as required above. All such insurance must be approved by the City and 44 each affected Railroad Company prior to the Contractor’s beginning work. 45 46 The insurance specified above must be carried until all Work to be performed on the railroad right-of-way 47 has been completed and the grade crossing, if any, is no longer used by the Contractor. In addition, 48 insurance must be carried during all maintenance and/or repair work performed in the railroad right-of-way. 49 Such insurance must name the railroad company as the insured, together with any tenant or lessee of the 50 railroad company operating over tracks involved in the Project. 51 52 53 54 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 805 00 73 00 SUPPLEMENTARY CONDITIONS Page 5 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 SC-7.08C., “Concerning Subcontractors and Suppliers” 2 3 The following subcontractors shall be required to be utilized by the Contractor for specific portions of the 4 Work as indicated below: 5 6 Required Subcontractors SUBCONTRACTOR COMPANY NAME DESCRIPTION OF WORK TO BE PERFORMED NONE 7 8 SC-7.11., “Permits and Utilities” 9 10 SC-7.11A., “Contractor obtained permits and licenses” 11 The following are known permits and/or licenses required by the Contract to be acquired by the Contractor: 12 NONE 13 14 SC-7.11B. “City obtained permits and licenses” 15 The following are known permits and/or licenses required by the Contract to be acquired by the City: 16 1. TxDOT Utility Installation Request (UIR) 17 18 SC-7.11C. “Outstanding permits and licenses” 19 20 The following is a list of known outstanding permits and/or licenses to be acquired, if any as of MAY 21 2022: 22 23 Outstanding Permits and/or Licenses to Be Acquired OWNER PERMIT OR LICENSE AND LOCATION TARGET DATE OF POSSESSION NONE 24 25 SC-7.24B., “Title VI, Civil Rights Act of 1964 as amended” 26 27 During the performance of this Contract, the Contractor, for itself, its assignees and successors in interest 28 (hereinafter referred to as the "Contractor") agrees as follows: 29 30 1.Compliance with Regulations: The Contractor shall comply with the Regulation relative to 31 nondiscrimination in Federally-assisted programs of the Department of Transportation (hereinafter, 32 “DOT”) Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, 33 (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part 34 of this contract. 35 36 2.Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, shall 37 not discriminate on the grounds of race, color, or national origin, in the selection and retention of 38 subcontractors, including procurements of materials and leases of equipment. The Contractor shall not 39 participate either directly or indirectly in the discrimination prohibited by 49 CFR, section 21.5 of the 40 Regulations, including employment practices when the contract covers a program set forth in 41 Appendix B of the Regulations. 42 43 3.Solicitations for Subcontractors, Including Procurements of Materials and Equipment: In all 44 solicitations either by competitive bidding or negotiation made by the contractor for work to be 45 performed under a subcontract, including procurements of materials or leases of equipment, each DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 806 00 73 00 SUPPLEMENTARY CONDITIONS Page 6 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 potential subcontactor or supplier shall be notified by the Contractor of the Contractor's obligations 2 under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or 3 national origin. 4 54.Information and Reports: The Contractor shall provide all information and reports required by the 6 Regulations or directives issued pursuant thereto, and shall permit access to its books, records, 7 accounts, other sources of information and its facilities as may be determined by City or the Texas 8 Department of Transportation to be pertinent to ascertain compliance with such Regulations, orders 9 and instructions. Where any information required of a contractor is in the exclusive possession of 10 another who fails or refuses to furnish this information the contractor shall so certify to the City, or the 11 Texas Department of Transportation, as appropriate, and shall set forth what efforts it has made to 12 obtain the information. 13 14 5.Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the 15 nondiscrimination provisions of this Contract, City shall impose such contract sanctions as it or the 16 Texas Department of Transportation may determine to be appropriate, including, but not limited to: 17 18 a. withholding of payments to the Contractor under the Contract until the Contractor 19 complies, and/or 20 b. cancellation, termination or suspension of the Contract, in whole or in part. 21 22 6.Incorporation of Provisions: The Contractor shall include the provisions of paragraphs (1) through 23 (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt 24 by the Regulations, or directives issued pursuant thereto. The Contractor shall take such action with 25 respect to any subcontract or procurement as City or the Texas Department of Transportation may 26 direct as a means of enforcing such provisions including sanctions for non-compliance: Provided, 27 however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a 28 subcontractor or supplier as a result of such direction, the contractor may request City to enter into 29 such litigation to protect the interests of City, and, in addition, the contractor may request the United 30 States to enter into such litigation to protect the interests of the United States. 31 32 Additional Title VI requirements can be found in the Appendix. 33 34 SC-8.02., “Coordination” 35 36 The individuals or entities listed below have contracts with the City for the performance of other work at 37 the Site: 38 Vendor Scope of Work Coordination Authority Texas Department of Transportation Highway and Frontage Road Construction Contractor/City Various Franchise Utility Companies Utility Construction Contractor/City Kimley-Horn and Associates, Inc. IH-35E Mayhill Construction Phase Services/Design Contractor/City 39 40 SC-9.01, “Communications to Contractor” 41 42 1. All materials shall use domestically manufactured products that are composed predominately of 43 steel and/or iron to incorporate into the permanent installation of the utility facility in compliance 44 with the Buy America provisions of 23 CFR 635.410 as amended. 45 2. Denton Water Field Operations (Coordinate 48-hours in advance of performed shutdown and tie- 46 in). DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 807 00 73 00 SUPPLEMENTARY CONDITIONS Page 7 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 3. Atmos: Omar Campos: Anibal.Campos@atmosenergy.com (Contact 48 hours in advance of 2 excavation operations occurring within 50’ of existing 8” gas pipeline). 3 4. Denton Municipal Electric: Aaron Bennion: Aaron.Bennion@cityofDenton.com (Coordinate 48 4 hours in advance of excavation operations occurring 20’ of existing 4” electric lines). 5 6 SC-10.01B., “City’s Project Manager” 7 8 The City’s Project Manager for this Contract is Kyle Pedigo, or his/her successor pursuant to written 9 notification from the City Engineer. 10 11 SC-13.02B., “Tests and Inspections” 12 13 NONE 14 15 SC-16.01C.1, “Methods and Procedures” 16 17 NONE 18 19 SC-17.01 – “BUY AMERICA” REQUIREMENTS 20 21 NOTICE TO CONTRACTORS and SUPPLIERS: 22 23 The project requires certification from the contractor’s suppliers that all manufacturing processes 24 for steel and iron materials or for the application of coatings (epoxy, galvanizing, painting or any 25 other coating that protects or enhances the value of the steel or iron metal) to these materials 26 occurred in the United States of America. For the purpose of the certifications, manufacturing 27 processes are defined as all processes required to change the raw ore or scrap metal into the finished 28 in-place steel or iron product. The successful contractor will be required to complete the Texas 29 Department of Transportation Material Statement Certification Form 1818 with for each 30 appropriate shop drawing submittal. TxDOT Form 1818 is included in the APPENDIX of this 31 project manual. 32 33 SC – 18.01, “Texas State Law Provisions” 34 35 SC – 18.01A. “Prohibition on Contracts with Companies Boycotting Israel“ 36 37 Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, 38 City is prohibited from entering into a contract with a company for goods or services unless the 39 contract contains a written verification from the company that it: (1) does not boycott Israel; and 40 (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and 41 “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas 42 Government Code. By signing this agreement, Contractor certifies that Contractor’s signature 43 provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will 44 not boycott Israel during the term of the agreement. Failure to meet or maintain the 45 requirements under this provision will be considered a material breach. 46 47 SC – 18.01B. “Prohibition on Contracts with Companies Boycotting Certain Energy 48 Companies” 49 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 808 00 73 00 SUPPLEMENTARY CONDITIONS Page 8 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, 2 City is prohibited from entering into a contract with a company for goods or services unless the 3 contract contains written verification from the company that it (1) does not boycott energy 4 companies; and (2) will not boycott energy companies during the term of the contract. The terms 5 “boycott energy company” and “company” shall have the meanings ascribed to those terms in 6 Section 809.001 of the Texas Government Code. By signing this agreement, Contractor 7 certifies that Contractor’s signature provides written verification to the City that Contractor: 8 (1) does not boycott energy companies; and (2) will not boycott energy companies during the 9 term of the agreement. Failure to meet or maintain the requirements under this provision will be 10 considered a material breach. 11 12 SC – 18.01C. “Prohibition on Contracts with Companies Boycotting Certain Firearm 13 Entities and Firearm Trade Associations” 14 15 Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, 16 City is prohibited from entering into a contract with a company for goods or services unless the 17 contract contains written verification from the company that it (1) does not have a practice, 18 policy, guidance, or directive that discriminates against a firearm entity or firearm trade 19 association; and (2) will not discriminate during the term of the contract against a firearm entity 20 or firearm trade association. The terms “discriminate against a firearm entity or firearm trade 21 association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to 22 those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, 23 Contractor certifies that Contractor’s signature provides written verification to the City that 24 Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates 25 against a firearm entity or firearm trade association; and (2) will not discriminate during the 26 term of the contract against a firearm entity or firearm trade association. Failure to meet or 27 maintain the requirements under this provision will be considered a material breach. 28 29 SC – 18.01D. “Prohibition On Contracts With Companies Doing Business with Iran, Sudan, 30 or a Foreign Terrorist Organization” 31 32 Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with 33 companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this 34 agreement, Contractor certifies that Contractor’s signature provides written verification to the 35 City that Contractor, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this 36 agreement and will not become ineligible to receive payments under this agreement by doing 37 business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the 38 requirements under this provision will be considered a material breach. 39 40 SC – 18.01E. “Termination Right for Contracts with Companies Doing Business with 41 Certain Foreign-Owned Companies” 42 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 809 00 73 00 SUPPLEMENTARY CONDITIONS Page 9 of 9 CITY OF DENTON IFB #7968-001 STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS IH-35E/Mayhill Utility Relocation Revised November 23, 2020 Effective January 15, 2021 1 The City of Denton may terminate this Contract immediately without any further liability if the 2 City of Denton determines, in its sole judgment, that this Contract meets the requirements under 3 Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority of stock or 4 other ownership interest of the company is held or controlled by individuals who are citizens of 5 China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the 6 Government of China, Iran, North Korea, Russia, or other designated country, or (iii) is 7 headquartered in China, Iran, North Korea, Russia, or other designated country. 8 9 10 END OF SECTION Revision Log DATE NAME SUMMARY OF CHANGE 05/19/2022 SC-17.01 Added the TxDOT BUY AMERICA requirements. DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 810 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) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government 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 176.00 1(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 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607Exhibit CIQ Mountain Cascade of Texas, LLC X 9/30/2022 X X X X 811 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 51F58C2D-BE92-4313-9234-6E84ABFA0607 812 Certificate Of Completion Envelope Id: 51F58C2DBE92431392346E84ABFA0607 Status: Sent Subject: Please DocuSign: City Council Contract 7968-001 IH-35E/Mayhill Utility Relocation Source Envelope: Document Pages: 106 Signatures: 4 Envelope Originator: Certificate Pages: 6 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.10 Record Tracking Status: Original 9/29/2022 3:09:06 PM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 9/29/2022 3:11:45 PM Viewed: 9/29/2022 3:13:17 PM Signed: 9/29/2022 3:13:57 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 9/29/2022 3:14:01 PM Viewed: 9/29/2022 3:22:26 PM Signed: 9/29/2022 3:24:08 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 47.24.6.135 Sent: 9/29/2022 3:24:12 PM Viewed: 9/29/2022 3:26:45 PM Signed: 9/29/2022 3:28:46 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Andrew McCulloch AMcCulloch@mountaincascade.com Vice-President Harber Co.Inc. dba Mountain Cascade of Nevada Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 174.244.1.99 Sent: 9/29/2022 3:28:50 PM Viewed: 9/29/2022 3:54:55 PM Signed: 9/30/2022 7:44:03 AM Electronic Record and Signature Disclosure: Accepted: 9/29/2022 3:54:55 PM ID: 486528a4-7223-412e-89ba-681f5af5b342 813 Signer Events Signature Timestamp Rebecca Diviney Rebecca.Diviney@cityofdenton.com Director of Capital Projects/City Engineer Capital Projects/Engineering Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/30/2022 7:44:07 AM Viewed: 9/30/2022 8:49:21 AM Signed: 9/30/2022 8:49:47 AM Electronic Record and Signature Disclosure: Accepted: 9/30/2022 8:49:21 AM ID: e3c488c8-5a9f-42e1-80b0-cf5b64e64e0d Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 8:49:52 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rosa Rios rosa.rios@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 10/2/2022 12:04:40 PM ID: b38026e7-94f8-4631-b88c-70cf55b870c2 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 9/29/2022 3:14:00 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 814 Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 9/30/2022 8:49:51 AM Viewed: 10/3/2022 2:14:25 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Chris Windsor ChrisW@mountaincascade.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Cheyenne Defee cheyenne.defee@cityofdenton.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 9/29/2022 3:11:45 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure 815 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Andrew McCulloch, Rebecca Diviney, Rosa Rios 816 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. 818 I-35E-Mayhill Utility Relocations Mountain Cascade of Texas, LLC Council November 1, 2022 Agenda item No. 22-2194 819 PROJECT DETAILS 2 The City of Denton is responsible for relocating City utilities along the I-35 corridor extending from the intersection with Mayhill Road in the South to Milam Road on the Northern boundary. These relocations are required to remove City utilities from the recently expanded Texas Department of Transportation’s (TxDOT) right of way due to TxDOT’s planned expansion of I-35 and the associated access roads. The I-35E-Mayhill Utility Relocation Project will relocate utilities out of TxDOT’s recently expanded Right of Way between Mayhill and Loop 288. Council 11/1/2022 Agenda Item No: 22-2194 820 ADVERTISING/BID INFORMATION 3 Company Mountain Cascade of Texas, LLC Oscar Renda Contracting, Inc.S.J. Louis Construction of Texas, Ltd. Base Bid Amount $ 14,294,283.00 $ 14,689,835.50 $ 15,177,714.21 In an effort to meet TxDOT’s anticipated roadway construction schedule, a Request for Qualifications for utility relocation construction services was solicited using the City’s formal solicitation process. City Council approved a pre-qualified list of professional service firms on June 7, 2022 (Ordinance 22-1145). Invitation for Bids was sent to the three pre-qualified firms. Three (3) bids meeting specifications were received. The lowest bid was received from Mountain Cascade of Texas, LLC. Bids Received: Council 11/1/2022 Agenda Item No: 22-2194 821 PROJECT SCHEDULE & ESTIMATE AT COMPLETION (EAC) 4 SCHEDULE November 2022: ▪Council Award project to contractor ▪City issue partial NTP (contractor begin ordering materials) December 2022:▪City & TxDOT execute Standard Utility Agreements for Reimbursements January 2023:▪City issue full NTP to Contractor to begin construction September 2023:▪Contractor Complete Construction ESTIMATE AT COMPLETION (EAC) Design & ROW :$ 3,555,023.60 Construction:$ 15,008,997.15 (NTE Amount) TOTAL EAC:$ 18,564,020.00 (Includes PM & PWI time) Council 11/1/2022 Agenda Item No: 22-2194 822 5 RECOMMENDATION Staff recommends approving the contract with Mountain Cascade of Texas, LLC, for the construction of the I-35E Mayhill Utility Relocations Project; providing for the expenditure of funds therefor; and providing an effective date (IFB 7968 – 001 awarded to Mountain Cascade of Texas, LLC, in the not-to-exceed amount of $15,008,997.15. Council 11/1/2022 Agenda Item No: 22-2194 823 Questions? 6Council 11/1/2022 Agenda Item No: 22-2194 824