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2015-241ORDINANCE NO. 2015 -241 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING CERTAIN TREE ADOPTION PROGRAMS FOR THE PUBLIC PURPOSE OF INCREASING THE TREE CANOPY WITHIN THE CITY; AUTHORIZING THE EXPEDITURE OF PROCEEDS FROM THE TREE FUND; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Tree Fund is administered by the City as a fund for tree mitigation, which is used to purchase, plant and maintain trees in the City and to educate citizens and developers on the benefits and value of trees; and WHEREAS, the City Council finds that increasing the tree canopy fulfills a public purpose by providing energy savings through shading buildings and decreasing ambient temperatures, filtering pollution out of the air, helping to reduce greenhouse gases, helping to manage storm water, and generally providing aesthetic benefits and increased property values within the City; and WHEREAS, the City Council finds that in order to achieve its goal of increasing the tree canopy within the City, it is necessary to allow for and fund programs that further the goal of planting and maintenance of trees; and WHEREAS, the City and Keep Denton Beautiful, Inc., a Texas Non - profit corporation, ( "KDB ") have an agreement whereby the City adopts in its budget in -kind support as well as a direct expenditure of funds for KDB programs in order to support KDB's mission "to engage our community in creating a clean and beautiful Denton," which said agreement is attached as Exhibit "A" hereto and incorporated by reference as if set forth at length herein; and WHEREAS, KDB's board of directors passed a resolution on July 29, 2015, which sets forth specific rules and procedures for new programs consisting of the provision of trees for adoption and tree care education, attached as Exhibit "B" hereto and incorporated by reference as if set forth herein ( "Tree Adoption Programs "), in support of its mission; and WHEREAS, the City Council hereby finds that the proposed rules and procedures for the Tree Adoption Programs provide adequate retention of control over the funds to ensure that the above public purpose is accomplished in order to protect the public's investment and to insure the City receives a return benefit; and WHEREAS, the City Council on 2-015- 252 approved an amendment to Section 35.13.7.A.7.e of the Denton Development Code, amending use of the Tree Fund deposits in order to accommodate this public purpose; and WHEREAS, the City Council of the City of Denton desires to approve use of the proceeds from the tree fund for the Tree Adoption Programs outlined in Exhibit B, as adopted in the City's annual budget, and has determined that the use of proceeds for such programs is in the best interest of the health, safety, morals, and general welfare of the City of Denton and should be granted as set forth herein: NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The City Manager or his designee, are hereby authorized to expend funds from the Tree Fund up to the amount(s) as adopted in the City's annual budget for any given year in order to achieve the public purpose of increasing the City's tree canopy. The Tree Adoption Programs set forth in Exhibit `B ", including the cost of adequate staffing, are hereby approved to be funded with proceeds from the Tree Fund, SECTION 3. The Tree Adoption Programs referenced above shall be administered by KDB with oversight by City personnel, and KDB shall abide by all agreements, rules, and procedures as outlined in Exhibits "A" and "B" attached hereto. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the IS _ day' , 2015. C1 l ,.y WATTS, MAYOR... ATTEST: ANITA BURGESS, CITY ATTORNEY By- ; EXHIBIT A (FIRST AMENDED AGREEMENT BETWEEN THE CITY AND KDB) 2015 FIRST AMENDED AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND KEEP DENTON BEAUTIFUL, IN CORPORATED This First Amended Agreement (hereafter the "Amendment ") is made and entered into by and between the City of Denton, a Texas municipal corporation, acting by and through its City Manager (hereinafter referred to as "CITY, ") and Keep Denton Beautiful, Incorporated, 1117 Riney Road, Denton, Texas 76207, a Texas non - profit corporation (hereinafter referred to as "CONTRACTOR "). WHEREAS, heretofore on the 7th day of March, 2000 the City Council enacted Ordinance No. 2000 -087 regarding Keep Denton Beautiful, Incorporated an "Agreement between the City of Denton and Keep Denton Beautiful Incorporated" was entered into on that date as well; with the passage of time it has become necessary and appropriate to amend such Agreement; this is the first amendment to such Agreement; and WHEREAS, the CITY recognizes that the mission of Keep Denton Beautiful, Inc. is "to engage our community in creating a clean and beautiful Denton;" and WHEREAS, the CITY has adopted a budget which includes in -kind support of, as well as a direct expenditure of funds for various Keep Denton Beautiful projects (herafter the "Projects "), from time -to- time.; and WHEREAS, the CITY has now designated the Solid Waste Department as the department of the City that is responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, the CITY wishes to continue to engage CONTRACTOR to continue to carry out such Projects; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. I. TERM This Amendment shall commence effective as of, January 1, 2015 and shall continue annually thereafter, so long as appropriate funds are budgeted for each fiscal year by the City for continuation of this Amendment. IL. Page 1 of 16 RESPONSIBILITIES CONTRACTOR hereby accepts the responsibility for the performance of all services and activities described in the Work Statement attached hereto as Exhibit "A," in a lawful, satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S designated Executive Officer to be the CONTRACTOR's representative, responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and approved by CITY. The CITY's KDB Program Manager shall be CITY's representative that is responsible for the administration of this Amendment. III. CITY'S OBLIGATION A. Limitation of Liability. CITY shall provide CONTRACTOR the sum of $10,000 or such other sum of money as determined by the City's annual budget, in subsequent years, to be expended in accordance with the Project budget. Notwithstanding any other provision of the Amendment, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of the then current budget for CONTRACTOR. For the calendar year 2015 and for each subsequent year, the Project budget may be amended by approval of a budget for applicable fund(s) that specifically earmarks the manner in which the funds so appropriated are to be expended. B. Measure of Liability. In consideration of full and satisfactory services and activities hereunder by CONTRACTOR, CITY shall make payments to CONTRACTOR based on the annual Budget approved by the Council; subject however, to the limitations and provisions set forth in this Section and Section VII of this Amendment. (1) CITY shall not be liable for any cost or portion thereof which: (a) was incurred prior to the beginning date, or after the ending date specified in Section I; (b) is not incurred in strict accordance with the terms of this Amendment, including all exhibits attached hereto; (c) is not an allowable cost as defined by Section X of this Amendment or the Project budget. (2) CITY shall not be liable for any cost or portion there of which is incurred with respect to any activity of CONTRACTOR which requires prior written approval and authorization from CITY; or after CITY has requested that CONTRACTOR furnish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. Page 2 of 16 (3) CITY shall not be obligated or liable under this Amendment to any party other than to the CONTRACTOR for payment of any monies or provision of any goods or services. C. In -Kind Services. The CITY shall provide staffing, office supplies, office space, and other related expenses to assist and facilitate CONTRACTOR in the accomplishment of the programs and Projects set forth in Exhibit "A;" provided that such expenditure of funds does not exceed the value that such programs and Projects bring to the CITY The determination of the amount of in -kind services provided by the CITY shall be limited generally by the CITY'S budget for such services and specifically by the City Manager's (or his/her designee's) allocation of the manpower and support services available to the Solid Waste Department for its overall operations in the CITY . Such allocation shall not exceed the amount allowed by Article 3, Section 52 of the Texas Constitution. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS CONTRACTOR shall comply with any and all applicable Federal laws, laws of the State of Texas and ordinances of the City of Denton, Texas. V. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Amendment. B. The person(s) signing and executing this Amendment on behalf of CONTRACTOR do /does hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Amendment on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Amendment if there is any dispute as to the legal authority of either CONTRACTOR or the person signing the Amendment to enter into this Amendment. CONTRACTOR is liable to CITY for any money which it has received from CITY for performance of the provisions of this Amendment if CITY has suspended or terminated this Amendment for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Amendment will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Amendment not been executed. Page 3 of 16 VI. PERFORMANCE BY CONTRACTOR CONTRACTOR shall provide, oversee, administer, and carry out all of the activities and services set out in the WORK STATEMENT, which is attached hereto and incorporated herein for all purposes as Exhibit "A," utilizing the funds herein described in Article III." and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the Program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Amendment. No modifications or alterations may be made in the Work Statement without the prior written approval of the City's Representative described in Paragraph II herein. VII. PAYMENTS TO CONTRACTOR A. Payments to Contractor. The CITY shall pay to the CONTRACTOR the sum of $10,000 (or such other budgeted sums for CONTRACTOR'S calendar year 2015 and for each fiscal year thereafter so long as this Amendment is in force) for services rendered under this Amendment with payment being due on or before January 1 of each calendar year thereafter, in which such sum is budgeted. CONTRACTOR is a calendar year taxpayer. B. Disallowed Costs. Upon termination of this Amendment, should any expense or charge for which payment has been made, be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, CONTRACTOR will refund such amount to CITY within ten (10) working days of a written notice issued to CONTRACTOR, which specifies the amount disallowed and declared due. Disallowed salaries or wages must be returned to CITY in the following format: (1) A cashier's check for the net aggregate amount payable to the City of Denton; and (2) A listing showing the Social Security number, full name, last known complete address and the amount owed to each person involved. Refunds of disallowed costs may not be made from these or any other funds received from or through CITY. VIII. WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. Page 4 of 16 B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business, or with the provisions of any existing indenture or other agreement of CONTRACTOR. E. CONTRACTOR has the power to enter into this Amendment and accept payment hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Amendment. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes, not delinquent, except as disclosed and shown in the financial statements furnished by CONTRACTOR to CITY. 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 by the CONTRACTOR. IX. COVENANTS A. During the period of this Amendment, the CONTRACTOR shall not, without the prior written consent of the City's authorized representative referenced in Paragraph II: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre- existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Amendment and with respect to which CITY has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property Page 5 of 16 purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. X. ALLOWABLE USES Funds shall only be used in the performance of and in compliance with this Amendment and in conformance with the standards and provisions of Exhibits "A" attached hereto. XI. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Amendment, in compliance with the provisions of Exhibit `B," attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR's record system and financial accounting system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Amendment or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Amendment for a period of three (3) years from the date of expenditure in order to permit CITY to timely audit such materials, should it so choose. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Amendment. D. At any reasonable time and as often as CITY may deem necessary, the CONTRACTOR shall make available to CITY all of its records and shall permit CITY to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said CITY representatives. XIII. REPORTS AND INFORMATION At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Amendment. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such audit, to the Assistant City Manager of Finance. Page 6 of 16 XIV. MONITORING AND EVALUATION A. CITY shall perform on -site monitoring of CONTRACTOR's performance under this Agreement from time -to -time. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and Objectives, which are attached hereto as Exhibit "A," as well as to other provisions of this Amendment. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of recordkeeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its legal, monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies to CITY within ten (10) working days of receipt by CONTRACTOR. XV. DIRECTORS' MEETINGS During the term of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be received by the CITY at least seventy -two (72) hours in advance of said meeting, in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the CONTRACTOR'S Board of Directors meetings. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY within thirty (30) working days of approval. XVI. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing Page 7 of 16 such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. If the premises on and in which the activities described in Exhibit "A" are conducted, are not owned or leased by the City, and the employees conducting these activities are not employed by CITY, then CONTRACTOR shall be covered by premises liability insurance, commonly referred to as "Owner /Tenant" coverage with CITY named as an additional insured. Upon the reasonable written request of CONTRACTOR, CITY may, at the sole discretion of its Risk Manager, approve alternate insurance coverage arrangements, in writing. C. CONTRACTOR will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants not employed by CITY, if applicable. D. CONTRACTOR shall maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that CITY and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. The CONTRACTOR shall be obligated to obtain replacement insurance coverage and provide evidence of same to the CITY Risk Manager. XVII. EQUAL OPPORTUNITY A. CONTRACTOR shall comply with CITY's policies in regard to the Federal Equal Employment and Affirmative Action provisions, or submit an alternate plan within thirty (30) days of the effective date of this Amendment. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. D. In the event of CONTRACTOR's non - compliance with the non - discrimination requirements, CITY, at its sole option, may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. Page 8 of 16 XVIII. PERSONNEL POLICIES CONTRACTOR's employment policies shall be be no more liberal than the CITY'S personnel and Human Resources policies. XIX. CONFLICT OF INTEREST A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Amendment. CONTRACTOR further covenants that in the performance of this Amendment, that no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in, or use his position for a purpose that is, or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Amendment which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Amendment or the proceeds thereof. XX. NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in -laws, aunt, uncle, nephew, niece, step- parent, step - child, half - brother and half - sister. XXI. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation Page 9 of 16 B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to promote in any manner any sectarian or religious facility or activity. XXII. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Amendment shall be by a further written amendment, executed by duly- authorized signatories both parties, except when the terms of this Amendment expressly provide that another method shall be used. For purposes of this Amendment the duly- authorized signatories are the KDB Program Manager for the CITY and the Board President regarding the CONTRACTOR. In the event that additional monies are requested by CONTRACTOR, then the CITY'S authorized signatory shall be instead, the City Manager. B. CONTRACTOR may not make transfers between or among approved line -items within budget categories set forth in Exhibit `B" without the prior written approval of CITY. CONTRACTOR shall request, in writing, any budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Amendment. In addition, CONTRACTOR expressly understands that budget revisions cannot significantly change the nature, intent, or scope of the Program funded under this Amendment. C. CONTRACTOR shall submit revised budget and program information, whenever the level of funding for CONTRACTOR or the Program(s) described herein is /are altered according to the total levels contained in any Council approved budget. D. It is understood and agreed by CITY and CONTRACTOR that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Amendment. Any such modifications are to be automatically incorporated into this Amendment without any written amendment hereto, and shall become a part of the Amendment on the effective date specified by the law or regulation. E. CITY may, from time to time during the term of the Amendment, request changes in Exhibit "A," which may include an increase or decrease in the amount of CONTRACTOR's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget shall require the prior written approval of CITY. G. CONTRACTOR agrees to notify CITY of any proposed change in physical location for work performed under this Amendment, at least thirty (30) calendar days in advance of the change. H. CONTRACTOR shall promptly notify CITY of any changes in personnel or governing board composition. Page 10 of 16 I. It is expressly understood that neither the performance of Exhibit "A" for any program contracted hereunder, nor the transfer of funds between or among said Programs will be permitted. XXV. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, require the CONTRACTOR to refund all unused funds. Such notice may be given personally and by certified mail to the Board President of CONTRACTOR. The notice shall set forth the specific basis of any default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all returned eligible funds, withheld or impounded. If, however, CITY determines that CONTRACTOR has not come into compliance, the provisions of Section XXVI may be effectuated. XXVI. TERMINATION A. CITY may terminate this Agreement with cause for any of the following reasons: (1) CONTRACTOR's failure to attain compliance during any prescribed period of suspension as provided in Section XXV. (2) CONTRACTOR's violation of covenants, agreements or guarantees of this Amendment. (3) A finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Amendment; (b) has allocated inventory to this Amendment substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Amendment in the ordinary course of business. (4) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOR's property, or the institution of bankruptcy, reorganization, rearrangement Page 11 of 16 of or liquidation proceedings by or against CONTRACTOR. (5) CONTRACTOR's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV of this Agreement. (6) The commission by CONTRACTOR of an act of bankruptcy. (7) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound, or shall be bound under the terms of the Amendment. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate this Amendment, and the effective date of termination thereof. Simultaneous notice of pending termination may be made to the other funding sources specified in Exhibit `B." B. CITY may terminate this Amendment for convenience, at any time upon providing CONTRACTOR thirty (30) days written notice of termination. C. CONTRACTOR may terminate this Amendment in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Amendment, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. D. CONTRACTOR may terminate this Amendment upon the dissolution of CONTRACTOR's organization not occasioned by a breach of this Amendment. E. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Amendment. CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date. F. Notwithstanding any exercise by CITY of its right of suspension or termination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Amendment by CONTRACTOR, and CITY may withhold any reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY from CONTRACTOR is agreed upon or is otherwise determined. XXVII. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm, corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or Page 12 of 16 other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by certified mail. CONTRACTOR shall also provide to CITY at the same time a true and correct copy of the pleadings or documents served upon it by the opposing party. XXVIII. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. XXIX. MISCELLANEOUS A. CONTRACTOR shall not transfer, pledge or otherwise assign this Amendment or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Amendment 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 CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Amendment 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 CONTRACTOR. 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. D. This Amendment, together with the referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Amendment, whether written or oral, shall have no force or effect whatsoever; nor shall any agreement, assertion, statement, understanding, or Page 13 of 16 other commitment occurring during the term of this Amendment, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as a further amendment of this Amendment. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Amendment or its governing rules, codes, laws, ordinances or regulations, CITY will have the final authority to render or to secure an interpretation. F. For purposes of this Amendment, all official communications and notices among the parties shall be deemed made if sent postage paid, hand - delivered, sent by electronic mail, or faxed to the parties and address set forth below: TO CITY: City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 TO CONTRACTOR: President of the Board of Directors Keep Denton Beautiful, Inc. 1117 Riney Road Denton, Texas 76207 G. This Amendment shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Amendment shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, this amendment is executed on this the !8 day of , 2015, but to be effective from and after January 1, 2015. CITY OF DENTON, TEXAS A Texas Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY U � '' ELl,,, ( "1` Y MANAGER Page 14 of 16 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: ATTEST: Board Secretary "CONTRACTOR" KEEP DENTON BEAUTIFUL, INC.. A Texas Non - Profit Corporation B: a pw � PRESID.1 "N" Page 15 of 16 EXHIBIT "A" Keep Denton Beautiful Work Statement Keep Denton Beautiful, Inc. ( "KDB ") develops and makes recommendations on issues related to the appearance and environment of Denton, Texas. KDB organizes and implements programs, projects, and educational opportunities in the areas of litter abatement, community beautification and urban forestry, to include without limitation, proposed public and private property tree planting programs such as (1) Tree Giveaways to the Community and Businesses; (2) Public and Youth Education functions; and (3) Arbor Day celebration activities.. KDB is an affiliate organization of the Keep America Beautiful, Inc. ( "KAB ") national program, and complies with all KAB standards to remain in good standing. Page 16 of 16 EXHIBIT B (KDB RESOLUTION) BOARD RESOLUTION At the meeting of the Board of Directors of Keep Denton Beautiful, Inc. (KDB) on July, 16, 2015, members heard a presentation regarding a series of new tree planting and distribution programs, to be funded through the City of Denton's Tree Mitigation Fund. In accordance with the KDB Bylaws, Article III. Section 4, board members submitted a vote via email, as requested by the Board President on July 29, 2015, and the following resolution was proposed and approved by the board: WHEREAS, the mission of Keep Denton Beautiful, Inc. is to engage our community in creating a clean and beautiful Denton; WHEREAS, the tree planting and distribution programs described herein support the mission of Keep Denton Beautiful, Inc.; WHEREAS, the Denton City Council authorizes the staff and board of Keep Denton Beautiful to oversee development of program applications and materials; Therefore, IT IS RESOLVED, that the Board hereby adopts the following rules and procedures for these new, Tree Fund - supported tree planting and distribution programs: NEIGHBORHOOD- HOSTED GIVEA WA YPROGR,4MRULES Neighborhood groups and nonprofit organizations may apply to host their own small -scale tree giveaway event; Applicant groups may be granted between 100 and 300 trees to distribute to community members to plant on private property; Trees must be planted within the City of Denton city limits; Giveaway participants shall be residents of the City of Denton. Proof of residency shall be required; Participants receiving trees through this program shall plant trees on residential property, which the applicant either owns or resides in; Organizations that are approved to host a neighborhood giveaway must send a representative to a KDB Tree Planting Class before hosting their giveaway; Organizations that are approved to host a neighborhood giveaway must collect names, addresses, and proof of residency for all giveaway participants, and submit this information to Keep Denton Beautiful, Inc. as an attachment to the required follow -up report, due 6 months following the giveaway event date; Priority is given to neighborhoods that are tree needy, frequently used by pedestrians, or low to moderate income as determined by HUD; The Neighborhood- Hosted Giveaway Program will be made available in Fall of 2016, by which time the above - listed program guidelines may be adjusted or amended. BUSINESS GIVEA WA Y PROGRAMR ULES An application may be completed by a business or nonprofit organization; The business location must be located on commercially zoned property within the City of Denton; Applicants must represent one existing business entity; Each applicant must have staff available to work on the project by making arrangements to prep the sites and plant the trees, provide maintenance and submit a report to KDB; Applicants must file a water and maintenance plan with KDB; Each applicant may request a minimum of 2 and a maximum of 5 trees per business planting site; At least one group representative must attend a KDB Tree Planting Class before trees are planted; Selected groups must submit a Project Report to Keep Denton Beautiful, due by June 1, 2016. Trees must be planted in a publicly viewed area; Tree planting must take place in Fall of 2015; Further program dates and deadlines will be outlined in the Program Guidelines document for this program, made available through the KDB website and in hard copy, as requested. REDBUD TREE GIVEAWAY As part of Keep Denton Beautiful's existing (and separately funded) Denton Redbud Festival, the official Arbor Day celebration for Denton, up to 250 free Redbud trees will be distributed to festival attendees; Tree recipients must register their tree planting address and agree to respond to KDB - administered surveys inquiring about the health of their tree. CITIZEN FORESTER TRAINING To assist with tree care and public education duties associated with the tree planting and distribution programs described herein, KDB will partner with the Texas Forest Service, the Cross Timbers Urban Forestry Council, and the City of Denton to host a regional Citizen Forester Training class in Denton; The 2015 training course will begin with the first class session on September 9, 2015, and will end with the last class session on January 27, 2016; Participants in the class must register through KDB and pay a class enrollment fee of $50, payable to the Cross Timbers Urban Forestry Council; Participants must attend all 6 sessions of the training course to qualify for Citizen Forester Certification. CHILDREN'S ARBOR DA Y ON- CAMPUS PLANTINGS As an enhancement to KDB's existing (and separately funded) Children's Arbor Day Program, schools applying for this program may request up to (2) 3 -inch caliper trees to be planted on the school campus, as well as mulch, watering bags, and printed urban forestry education materials; Schools in Denton ISD and private schools located within the City of Denton are eligible; School representatives applying for this program must clear tree planting locations with school Facilities personnel and the school principal or his /her designee. Signed: By: President Date: