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HomeMy WebLinkAbout2012-09-25 Workshop & Regular Meeting PacketY{OUR} HOMETOWN CITY OF ANNA AGENDA NOTICE -CITY COUNCIL WORKSHOP September 25, 2012 6:30 p.m. —Anna City Hall Administration Building The City Council of the City of Anna will meet in Workshop Session at 6:30 p.m., September 25, 2012, at the Anna City Hall Administration Building, located at 111 North Powell Parkway (Hwy 5), regarding the following items. 1. Call to Order 2. Roll Call and Establishment of Quorum. 3. Briefing on proposed water and sewer projects. 4. CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter• 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions: a. consult with legal counsel regarding pending or contemplated litigation and/or• on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071). Anticipated litigation with Amazing Solar• Solutions; "City of Anna v. City of Weston, Cause No. 38M2570- 2011, in the 3801h District Court of Collin County, Texas"; "City of Anna v. Walmat Inc., et al.; Cause No. 42M02M2009, in the 429th District Court of Collin County, Texas"; NTMWD wastewater customer status request. b. discuss or deliberate the purchase, exchange, lease, or value of real propet•ty (Tex. Gov't Code §551.072); acquisition of park land and acquisition of utility easements. c. discuss or deliberate personnel matters: City Secretary Annual Review. (Tex. Gov't Code §551.074); I. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legallyjustified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-2542 CC Regular Meeting Agenda.doc Posted 09-21-12 d. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the Board of Directors has received from a business prospect that the Board of Directors seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the Board is conducting economic development negotiations; or (2) To deliberate the offer of a financial or other incentive to a business prospect described by subdivision (1). (Tex. Gov't Code §551.087): discussion regarding an Economic Development Incentive Agreement for a business looking to locate in Anna. The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act. 5. Consider/Discuss/Action on any items listed on posted agenda for September 25, 2012 City of Anna City Council Regular Meeting or any Closed Session occurring during this Workshop, as necessary. 6. Adjourn. This is to certify that I, Natha Willcison, City Secretary, posted this agenda at a place readily accessible to the public at the Anna City Hall and on the City Hall bulletin board at or before 5:00 p.m., September 21, 2012. Natha Wilkison, City Secretary l .The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legallyjustified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 2 Posted 09-21-12 Y{OUR} HOMETOW P7 CITY OF ANNA AGENDA NOTICE —CITY COUNCIL REGULAR MEETING September 25, 2012 7:30 p.m. —Anna City Hall Administration Building The City Council of the City of Anna will meet in Regular Session at 7:30 p.m., September 25, 2012, at the Anna City Hall Administration Building, located at I I I North Powell Parkway (Hwy 5), to consider the following items. Welcome to the City Council Meeting. Please sign the Sign -In -Sheet as a record of attendance. If you ivish to speak on an open -session agenda item please fill out the Opinion/Speaker Registration Form and turn it in to the City Secretary before the meeting starts. 1. Call to Order. 2. Invocation and Pledge of Allegiance. 3. Citizen comments. Citizens are allo�t�ed 3 minutes to speak. The Cozrncil is unable to respond to or discuss any issues that are brought up during this section that are not on the agenda, other than to make statements of specific factual information in response to a citizen's inquiry or to recite existing policy in response to the inquiry. 4. Receive reports from Staff or the City Council about items of community interest. Items of conununity interest 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 (but not including a change in statits of a person's public office or public employment); 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 ivas attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; and announcements involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. 1. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legally justified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 3 Posted 09-21-12 5. Consent Items. These items consist of non -controversial or "housekeeping" items required by law. Items may be considered individually by any Council member making such request prior to a motion and vote on the Consent Items. a. Approve City Council Minutes for August 28, 2012 Regular Meeting. b. Approve City Council Minutes for September 4, 2012 Special Meeting. c. Issue a Proclamation regarding National Night Out, October 2, 2012. (Chief Jenks) d. Approve a Resolution authorizing the appointment of an Emergency Management Coordinator. (City Manager) e. Approve a Resolution amending the EDC FY 2012 Budget. (Jessica Perkins) f. Approve a Resolution amending the CDC FY 2012 Budget. (Jessica Perkins) g. Approve the Preliminary Plat of West Crossing Phase III. (Maurice Schwanke) h. Approve a Resolution determining not to update land use assumptions, capital improvements plan, or impact fees and directing publication of notice of same. (City Manager) i. Approve a Resolution approving a Project Agreement with the Anna Community Development Corporation. (Jessica Perkins) J. Approve a Resolution authorizing the submission of a Texas Community Development Block Grant Program application to the Texas Department of Agriculture for sewer improvements. (City Manager) lc. Approve a Resolution committing matching funds in support of activities proposed in a Texas Community Development Block Grant Program application to the Texas Department of Agriculture for sewer improvements. (City Manager) 1. Approve a Resolution approving an annual sponsorship agreement between the EDC and the Greater Anna Chamber of Commerce. (Jessica Perkins) m. Approve a Resolution approving an annual sponsorship agreement between the CDC and the Greater Anna Chamber of Commerce. (Jessica Perkins) n. Review P & Z Minutes of April 2, 2012. o. Review P & Z Minutes of May 7, 2012. p. Review P & Z Minutes of May 21, 2012. q. Review P & Z Minutes of June 11, 2012. r. Review P & Z Minutes of August 6, 2012. 1. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legallyjustified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 4 Posted 09-21-12 6. Consider/Discuss/Action regarding a Resolution initiating annexation proceedings for certain properties. This property is generally located south of West White Street, East of Ferguson Parkway, and west of Slayter Creels. (Maurice Schwanlse) 7. Consider/Discuss/Action adopting an ordinance approving a boundary agreement and settlement agreement with the City of Weston. (City Attorney) 8. Consider/Discuss/Action adopting a resolution approving settlement agreement related to City of Anna v. Walmat Inc. et al., Cause No. 429-00288- 2009, in the 429th District Court of Collin County, Texas. (City Attorney) 9. Consider/Discuss/Action regarding a Resolution approving a Development Agreement for acquisition of property for Slayter Creek Trail. (City Manager) 10. Consider/Discuss/Action regarding a Resolution awarding bid for Slayter Creels Park Phase 11. (City Manager) 11. Consider/Discuss/Action regarding a Resolution approving Change Order No. 1 with Parkscape Construction Inc. (City Manager) 12. Consider/Discuss/Action regarding a Resolution awarding bid for Slayter Creek Trail Phase II. (City Manager) 13. Consider/Discuss/Action regarding a Resolution authorizing the purchase of field lighting for Slayter Creek Park. (City Manager) 14. Consider/Discuss/Action regarding a Resolution authorizing the use of eminent domain to condemn private property owned by Chan C. Chung and/or others for water and wastewater utilities associated with alterations to F.M. 455 in the City. (City Manager) 15. Consider/Discuss/Action regarding a Resolution authorizing the use of eminent domain to condemn private property owned by Charles K. Green and/or others for water and wastewater utilities associated with alterations to F. M. 455 in the City. (City Manager) 16. Consider/Discuss/Action regarding an Resolution adopting use classification for "Private Event/Meeting Hall " (Maurice Schwanlse) 17. Consider/Discuss/Action regarding a Resolution casting votes for the TMLIEBP Board of Trustees election. (Clayton Fulton) 1. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legally justified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 5 Posted 09-21-12 18. Consider/Discuss/Action regarding a Resolution casting votes for the TMLIRP Board of Trustees election. (Clayton Fulton) 19. Staff briefing on the Wildfire Network. (Chief Jenks) 20. CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions: a. consult with legal counsel regarding pending or contemplated litigation and/or on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071). Anticipated litigation with Amazing Solar Solutions; "City of Anna v. City of Weston, Cause No. 380-02570- 2011, in the 380th District Court of Collin County, Texas"; "City of Anna v. Walmat Inc., et al.; Cause No. 429-00288-2009, in the 429th District Court of Collin County, Texas"; NTMWD wastewater customer status request. b. discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of park land and acquisition of utility easements, c. discuss or deliberate personnel matters. City Secretary Annual Review. (Tex. Gov't Code §551.074); d. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the Board of Directors has received from a business prospect that the Board of Directors seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the Board is conducting economic development negotiations; or (2) To deliberate the offer of a financial or other incentive to a business prospect described by subdivision (1). (Tex. Gov't Code §551.087): discussion regarding an Economic Development Incentive Agreement for a business looking to locate in Anna. The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act, 1. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legally justified under the Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 6 Posted 09-21-12 21. Consider/Discuss/Action on any items listed on posted agenda for September 25, 2012 City of Anna Workshop Session or any closed session occurring during this Regular Meeting, as necessary. 22. Adjourn. This is to certify that I, Natha Wson1 City Secretary, posted this agenda at a place readily accessible to the public at the Anna City Hall and on the City Hall bulletin board at or before 5:00 p.m., September 21, 2012. Natha Willcison, City Secretary 1. The Council may vote and/or act upon each of the items listed in this agenda. 2. The Council reserves the right to retire into executive session concerning any of the items listed on this agenda, whenever it is considered necessary and legally justified under dre Open Meeting Act. 3. Persons with a disability who want to attend this meeting who may need assistance should contact the City Secretary at 972 924- 3325 two working days prior to the meeting so that appropriate arrangements can be made. 09-25-12 CC Regular Meeting Agenda.doc 7 Posted 09-21-12 Y{OUA,} HOMETOWN CITY COUNCIL MEETING SIGN IN SHEET DATE: j' Please sign -in as a record of attendance. All persons desiring to address the council are requested to sign below and fill out an Opinion/Speaker Registration Form. Please hand the Opinion/Speaker Registration Form to the City Secretary prior to the start of the City Council Meeting. ADDRESS Welcome to e city euundf meeting.. Your preseaGe and part[ci eE€arl are appreciated. You may mako your € pInivn kno%ln on an issue andf r register to. speakto tfre Mayer and Gib Council. Pfease � t fs form Ifn at the staff-tabre' o be '€c arded to the Mayor. Pfease step to the podium as s€ arr as you are recognized by the Mayor and state your name aftd address before begainfa. Yeur presentation. If you have ��t n nate-s or her material you vast �� present the to Mayo and CouncUr please furnish an extra c9py for the OffWai fit es. Name:�- �Wdress: 1 Mate � r ��afrts� 10 do net wish to address th-e Mayer and pity Council, but da sh fa re Ester 71 OPMEOR Natha Wilkison From: Clark McCoy <cmccoy@wtmlaw.net> Sent: Friday, September 21, 2012 11:20 AM To: Mike Crist ; Philip Sanders Cc: Natha Wilkison; Natha Wilkison (nwilkison@gcecisp.com) Subject: Condemnation Motion Mike and Philip, For the condemnation items, the motions must be read exactly as stated below. CHUNG EASEMENT I move that the City of Anna, Texas authorize the use of the power of eminent domain to acquire 618 square feet of land, more or less, in the Granderson Stark Survey, Abstract Number 798, City of Anna, Collin County, Texas, and being part of that certain called 0.2718 acre tract of land described in a deed to Chan C. Chung, as recorded in Volume 5965, Page 2924 of the Official Public Records of Collin County, Texas, said 618 square feet of land being more particularly described by the metes and bounds description set forth in Exhibit "A" to this resolution, which I incorporate in full into my motion, for a waterline and wastewater line easement. GREEN EASEMENT I move that the City of Anna, Texas authorize the use of the power of eminent domain to acquire 1,247 square feet of land, more or less, in the Granderson Stark Survey, Abstract Number 798, City of Anna, Collin County, Texas, and being part of that certain called 0.275 acre tract of land described in a deed to Charles K. Green, as recorded in Volume 5858, Page 3868 of the Official Public Records of Collin County, Texas, said 1,247 square feet of land being more particularly described by the metes and bounds description set forth in Exhibit "A" to this resolution, which I incorporate in full into my motion, for a waterline and wastewater line easement. NOTE: A simple technique I have seen used effectively (when the motion needs to be precise), is for the Mayor to read the motion and ask if a Council member would "so move" as in the following dialogue: MAYOR: "I have a proposed written motion here that I will read." (Mayor reads motion verbatim). "Does anyone so move?" MEMBER A: "I so move." MAYOR: "Does anyone second the motion?" MEMBER B: "I second the motion." Please let me know if you have any questions or concerns. -CM Clark McCoy cmccoy@wtmlaw.net WOLFE, TIDWELL & MCCOY, LLP 2591 Dallas Parkway Suite 205 Frisco, Texas 75034 972.712.3530 telephone 972.712.3540 facsimile 1 __ l -� e nit �- Cll��S �o�� Welcome to the city Guundl meeting., Your presea and paficf vtron are appreciated. You may make your uptnton known an an issue andfor regfeter to - speak to the Mayor and Gity C une f_ Pfease f-um tbfs form 1n athe staff, tabfe, to be forwarded td the Mayer. Please step to the pndEu n as scan as you are ren ntzed b the Mayor and state your name attd address before be.grTnfng your presentation, f u have grit n€�fe r otf�er terfat u fstr to p€esent the Mayor and G _uncflf please furnish are extra for thec�fefal fifes_ t . address: � � 2 State f Zip. Te6ep�c�ne �iu�nbar j - L'�j Cy FZegarding Agenda Iteryi No. 1 S Councxt Meeting Date. �rt�enfis: Use �ao� i� neoessa�� de net i s to address the Mayor and oun- 6tr but € o, s� tc� r€ gf ter MY opfrTIOM RESOLUTION NO, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, ESTABLISHING WHAT CATEGORY AND USE CLASSIFICATION THAT A PRIVATE EVENT/MEETING HALL SHOULD BE LOCATED; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, from time to time a land use will be brought forward that is not addressed within the existing use charts that the City has adopted; and WHEREAS, the City Council needs to make a determination of where a use is appropriate; and WHERAS, after appropriate aspects of a use such as transportation requirements, type of product, anticipated employment, the amount of noise, odor, fumes, toxic materials and vibration likely to be generated and the general requirements for public utilities such as water and sanitary sewer have been analyzed; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT; SECTION 1. That A Private Event/Meeting Hall be defined as follows: PRIVATE EVENT/MEETING HALL: A privately owned building (excluding churches) or portion of such building, regularly used or leased as a location for a variety of privately sponsored events such as receptions, meetings, classes, reunions, parties, tournaments, find raisers, exhibitions, and other similar events. SECTION 2. That uses classified as a "Private Event/Meeting Hall" be appropriate in the "C1" and more intense commercial districts by right and if alcohol is served and no permit is held or required under the Texas Alcoholic Beverage Code for such service of alcohol a Specific Use Permit would be required in "Cl" and allowed by right in more intense districts. SECTION 3. Should any part of this Resolution be held to be invalid for any reason, the remainder shall not be affected thereby, and such remaining portions are hereby declared to be severable. SECTION 4. This Resolution ordinance shall take effect immediately from and after its passage and it is so duly resolved. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 25t" day of September, 2012. APPROVED: ATTEST: Mike Crist, Mayor City Secretary CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS AUTHORIZING AND APPROVING A PROJECT AGREEMENT WITH THE ANNA COMMUNITY DEVELOPMENT CORPORATIONS WHEREAS, the City of Anna intends to allow and approve a project agreement with the Anna Community Development Corporation ("CDC"); WHEREAS, the City Council of the City of Anna has determined that the project agreement with the CDC is necessary for the disbursement of funds for and management of park projects; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority to Execute Project Agreement -� The City Council of the City of Anna hereby approves the Project Agreement attached to this resolution as Exhibit A and authorizes the City Manager to execute same on its behalf. PASSED AND APPROVED by the City Council of the City of Anna this 2012 APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 n Y{OUii} HOA�IE'I`OWN Council Meeting: September 25, 2012 Item No. 3 W S City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Account Code #: Budgeted Amount: Exhibits: X Yes ❑ No AGENDA SUBJECT: Presentation of proposed water and wastewater system improvements. SUMMARY: A number of years ago, the City of Anna helped fund the construction of a water line from McKinney to Howe that would allow the city to supplement our current groundwater supplies with surface from the North Texas Municipal Water District (NTMWD). Earlier this year, Staff presented a plan to the Council for the gradual blending of surface with our existing groundwater as warranted by growth. With the growth that is now occurring in the city it will soon be necessary to construct the improvements that will allow us to introduce surface water into our water system. Several years ago, the City recognized that its current wastewater treatment plant would not have enough treatment capacity to accommodate the anticipated future growth. In order to relieve pressure on the wastewater treatment plant, the cities of Anna and Melissa agreed to construct a wastewater interceptor line that would transmit wastewater from the two cities into the NTMWD upper trinity wastewater collection system. In 2009, wastewater from the neighborhoods of Creekside, The Falls, and part of Oak Hollow was diverted into the NTMWD collection system. While this diversion provided some temporary relief on the city's wastewater treatment plant, the growth that is now occurring in the city is again pushing the capacity of our wastewater plant. Earlier this year Staff presented a plan to the Council to upgrade our wastewater treatment plant and construct an interceptor line that would divert excess flow from our wastewater plant into the NTMWD upper trinity wastewater collection system. Since our spring presentations, several new Council members have been elected. We have asked our consulting engineer Gary Hendricks from the firm of Birkhoff, Hendricks &Carter to provide an overview of the rationale and scope of the proposed water and sewer system improvements. During the October 9th Council meeting, we will present and ask the Council to approve a financial plan for finding the proposed improvements. We will also ask the Council to approve the engineering contracts for the design of the improvements. 13 (+hSi oY r�l'i��l Council Meeting: September 25, 2012 Account Code #: N/A Budgeted Amount:, AGENDA SUBJECT: SUMMARY: RECOMMENDATION: N/A Call to order. Item No. 1 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Exhibits: ❑Yes ❑ No FFOMGTOWN Council Meeting: September 20I 2012 Account Code #: NlA Item No. 2 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Budgeted Amount: N/A Exhibits: ❑Yes AGENDA SUBJECT: Invocation and Pledge of Allegiance. SUMMARY: RECOMMENDATION: ❑ No Item No. 3 City Secretary's use only City of Anna City Council Agenda Staff Report Y{OUR} FFOME'rOWN Council Meeting: September 20, 2012 Staff Contact: Philip Sanders Account Code #: N/A Date Prepared: 8-20-12 Budgeted Amount: N/A Exhibits: ❑Yes ❑ No AGENDA SUBJECT: Citizen Comments. Citizens are alloived 3 minutes to speak. The Council is unable to respond to or discuss any issues that are brought up during this section that are not on the agenda, other than to make statements of specific factual information in response to a citizen's inquiry or to recite existing policy in response to the inquiry. SUMMARY: RECOMMENDATION: Item No, 4 City Secretary's use only City of Anna City Council Agenda Staff Report tiOhtETOWN Council Meeting: September 25, 2012 Staff Contact: Philip Sanders Account Code #: N/A Date Prepared: 8-2012 Budgeted Amount: N/A Exhibits: ❑Yes ❑ No AGENDA SUBJECT: Receive reports from Staff or the City Council about items of community interest. Items of communion interest include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or sahttary recognition of a public official, public employee, or other citizen (but not including a change in status of a person's public office or public employment); 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 mumicipality; and announcements involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. SUMMARY: �CK�7► i►i i �i►`117:�1 Y [�7►a Il �7«i�i?iy`i Council Meeting: September 25, 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 5 La —r City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Exhibits: ❑Yes ❑ No AGENDA SUBJECT: Consent Items. These items consist of non -controversial or 'housekeeping" items required by lath. Items may be considered individually by any Council member making such request prior to a motion and vote on the Consent Items. a. Approve City Council Minutes for August 28, 2012 Regular Meeting. b. Approve City Council Minutes for September 4, 2012 Special Mtg. c. Issue a Proclamation regarding National Night Out, October 2, 2012. (Chief Jenks) d. Approve a Resolution authorizing the appointment of an Emergency Management Coordinator. (City Manager) e. Approve a Resolution amending the EDC FY 2012 Budget. (Jessica Perkins) £ Approve a Resolution amending the CDC FY 2012 Budget. (Jessica Perkins) g. Approve the Preliminary Plat of West Crossing Phase III. (Maurice Schwanke) h. Approve a Resolution determining not to update land use assumptions, capital improvements plan, or impact fees and directing publication of notice of same. (City Manager) i. Approve a Resolution approving a Project Agreement with the Anna Community Development Corporation. (Jessica Perkins) j. Approve a Resolution authorizing the submission of a Texas Community Development Block Grant Program application to the Texas Department of Agriculture for sewer improvements. (City Manager) k. Approve a Resolution committing matching funds in support of activities proposed in a Texas Community Development Block Grant Program application to the Texas Department of Agriculture for sewer improvements. (City Manager) 1. Approve a Resolution approving an annual sponsorship agreement between the EDC and the Greater Anna Chamber of Commerce. (Jessica Perkins) Item No. 5 La —r City Secretary's use only m. Approve a Resolution approving an annual sponsorship agreement between the CDC and the Greater Anna Chamber of Commerce. (Jessica. Perkins) n. Review P & Z Minutes of April 2, 2012. o. Review P & Z Minutes of May 7, 2012. p. Review P & Z Minutes for May 21, 2012. q. Review P & Z Minutes of June 11, 2012. r. Review P & Z Minutes of August 6, 2012. RECOMMENDATION: Staff recommends approval of the consent items. MINUTES OF CITY OF ANNA AGENDA NOTICE - CITY COUNCIL WORKSHOP August 28, 2012 6:30 p.m. —Anna City Hall Administration Building The City Council of the City of Anna met in Workshop Session at 6:30 p.m., August 285 2012, at the Anna City Hall Administration Building, located at 111 North Powell Parkway (Hwy 5), regarding the following items. 1. Call to Order. Mayor Mike Crist called the meeting to order at 6:30 pm. 2. Roll Call and Establishment of Quorum. Mayor Mike Crist and Council Members James T. Cook, John Geren, Nathan Bryan, and Becky Glover were present. Council Member Hopewell arrived at 6:35 pm. Mayor Crist made the motion to enter closed session at 6:34 pm. Council Member Geren seconded the motion. Motion passes. AYE 5 NAY 0 ABSTAIN 0 3. CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions.0 a. consult with legal counsel regarding pending or contemplated gation and/or on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071). Anticipated litigation with Amazing Solar Solutions, "City of Anna v. City of Weston, Cause No. 380-02570-2011, in the 380t" District Court of Collin County, Texas"; "City of Anna v. Walmat Inc., et al., Cause No. 429-0028&2009, in the 429th District Court of Collin County, Texas." b. discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of parlc land. c. discuss or deliberate personnel matters: City Secretary Annual Review. (Tex. Gov't Code §551.074); 08-28-12 CC Regular Meeting Minutes.doc 1 08-28-]2 The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act. Council Member Geren made the motion to return to open session at 7:29 pin. Council Member Hopewell seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 4. Consider/Discuss/Action on any items listed on posted agenda for August 28, 2012 City of Anna City Council Regular Meeting or any Closed Session occurring during this Workshop, as necessary. Council Member Glover made the motion to take no action. Council Member Hopewell seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 5. Adjourn. Council Member Cook made the motion to adjourn at 7:30 pm. Council Member Geren seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 ATTEST: APPROVED: Natha Wilkison, City Secretary Milce Crist, Mayor 08-28-12 CC Regular Meeting Minutes.doc 2 08-28-12 MINUTES OF CITY OF ANNA AGENDA NOTICE — CITY COUNCIL REGULAR MEETING August 28, 2012 7:30 p.m. —Anna City Hall Administration Building The City Council of the City of Anna met in Regular Session at 7:30 p.m., August 28, 2012, at the Anna City Hall Administration Building, located at III North Powell Parkway (Hwy 5), to consider the following items. Welcome to the City CoZrrtcil Meeting. Please sign the Sign -In -Sheet as attendance. If you tivish to speak on an open -session agenda item please Opinion/Speaker° Registration Forrn and turn it in to the City Secretary meeting starts. 1. Call to Order. Mayor Crist called the meeting to order at 7:36 pm. 2. Invocation and Pledge of Allegiance. Mayor Crist gave the invocation. a record of fill out the before the 3. Citizen comments. Citizens ar•e allowed 3 minutes to speak. The Council is unable to respond to or discuss any issues that are brought up during this section that are not on the agenda, other than to make statements of specific factual information in response to a citizen's inquiry or to recite existing policy in response to the inquiry. None 4. Receive reports from Staff or the City Council about items of community interest. Items of community interest 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 (but not including a change in status of a person's public office or public employment), 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 «n 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, and announcements involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. City Manager, Philip Sanders announced that City Offices would be closed for Labor Day. 08-28-12 CC Regular Meeting Minutes.doc 3 08-28-12 5. Consent Items. These items consist of non -controversial or "housekeeping" items required by law. Items may be considered individually by any Council member making such request prior to a motion and vote on the Consent Items. a. Approve City Council Minutes for August 14, 2012 Regular Meeting. b. Approve City Council Minutes for August 7, 2012 Special Meeting. c. Approve City Council Minutes for August 21, 2012 Special Meeting. d. Review CDC Minutes for June 11, 2012 Special Meeting. e. Review FDC Minutes for June 11, 2012 Special Meeting. f. Approve a Resolution requesting funding for the US 75/FM 455 Interchange. (City Manager) Mayor Crist asks to remove item 5(c) for discussion. Cotmcil Member Geren made the motion to approve item 5 (a, b, d, e, and f). Council Member Bryan seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 Mayor Crist made a motion to have the comment thanking Fire Chief Roma for his service be removed from the minutes because there was not an item on the agenda. Council Member Glover seconded the motion. Motion passes. AYE 6 NAY 0 6. Public Hearing: (2nd): For City Council to hear public comment on the proposed 2012 Tax Rate. (Clayton Fulton) Director Fri Clayton Fulton presented the item to council. Mayor Crist opened the public hearing at 7:40 pm. There was no public comment. Mayor Crist closed the public hearing at 7:41 pm. 7. (a) Public Hearing: To consider public comments regarding an ordinance of the city of Anna, Texas, amending the Anna City Code of Ordinances by amending Part II, Article 3 by adding regulations related to alcoholic beverages; by amending Part III- C, Zoning Ordinance, Section 34.12 regulating location and uses related to sale of alcoholic beverages. (Maurice Schwanke) Maurice Schwanke, Director of Planning and Development presented the item to council Mayor Crist opened the public hearing at 7:42 pm. There was no public comment. Mayor Crist closed the public hearing at 7:42 pm. 08-28-12 CC Regular Meeting Minutes.doc 4 08-28-12 (b) Consider/Discuss/Act on recommendation regarding an ordinance of the city of Anna, Texas, amending the Anna City Code of Ordinances by amending Part II, Article 3 by adding regulations related to alcoholic beverages; by amending Part III-C Zoning Ordinance, Section 34.12 regulating location and uses related to sale of alcoholic beverages. (Maurice Schwanke) Council Member Geren made the motion to approve. Council Member Glover seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 8. (a) Public Hearing: To consider public comments regarding an ordinance of the City of Anna, Texas amending the Anna Code of Ordinances by amending Part III-C; Zoning Ordinance, Section 34 by adding Section 34.13 (Wind Energy Systems) amending Appendix 2 Schedule of Uses- Table 7 and 3.7.8 (Descriptions/Definitions of Uses). (Maurice Schwanke) Director of Planning and Development Maurice Schwanke presented the item to council. Mayor Crist opened the public hearing at 7:48 pm. there was not public comment. Mayor Crist closed the public hearing at 7:49 pm. (b) Consider/Discuss/Act on recommendation regarding an ordinance of the City of Anna, Texas, amending the Anna City Code of Ordinances by amending Part III-C; Zoning Ordinance, Section 34 by adding Section 34.13 (Wind Energy Systems) amending Appendix 2 Schedule of Uses - Table 7 and 3.7.8 (Descriptions/Definition of Uses). (Maurice Schwanke) John Simon spoke in favor of having wind turbines. Robert Oliver spoke in favor of having wind turbines. Cathey Hudson spoke in favor of having wind turbines. Council Members discussed the two ordinances and their options. Council Member Glover made the motion to approve Ordinance Option A with no SUP requirement. Council Member Hopewell seconded the motion. Motion fails. AYE 3 (CM Hopewell, CM Bryan and CM Glover) NAY 3 (CM Cook, CM Geren and Mayor Crist) ABSTAIN 0 Council Member made the motion to approve Ordinance Option B. Motion dies for lack of a second. 08-28-12 CC Regular Meeting Minutes.doc 5 08-28-12 Council Member COok made the motion to approve Ordinance A with the SUP. Council Member Geren seconded the motion. Council Members discussed their options more. Motion passes. AYE 4 NAY 2 (CM Hopewell and CM Bryan) ABSTAIN 0 9. Public Hearing: To consider public comments regarding submission of an application for assistance through the Texas Community Development Block Grant Program (TxCDBG). (City Manager) City Manager, Philip Sanders presented the item to council. Mayor Crist opened the public hearing at 8:21 pm. Jessica Kaltenbach gave council members information on the CDBG Application process and answered questions. Mayor Crist closed the public hearing at 8*28 pm. 10. Public Hearing: To consider• public comments regarding a recently completed water system improvements project funded by the 2010 TxCDBG Program. (City Manager). City Manager, Philip Sanders presented the item to council members. Mayor Crist opened the public hearing at 8:28 pm. There was no public comment. Mayor Crist closed the public hearing at 8:28 pm. Council did not enter closed session at this time. Council Member Geren made the motion to take no action. Council Member Bryan seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 11. CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions. a. consult with legal counsel regarding pending or contemplated litigation and/or on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071). Anticipated litigation with Amazing Solar Solutions; "City of Anna v. City of Weston, Cause No. 380-02570-2011, in the 380t1i District Court of Collin County, Texas"; "City of Anna v. Walmat Inc., et al.; Cause No. 429-0028&2009, in the 429th District Court of Collin County, Texas." b. discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of park land. 08-28-12 CC Regular Meeting Minutes.doe 6 08-28-12 c. discuss or deliberate personnel matters. City Secretary Annual Review. (Tex. Gov't Code §551.074); The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act. 12. Consider/Discuss/Action on any items listed on posted agenda for August 28, 2012 City of Anna Workshop Session or any closed session occurring during this Regular Meeting, as necessary. Council Member Glover made the motion to take no action. Council Member Geren seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 13. Adjourn. Council Member Coolc made the motion to adjourn at 8:30 pm. Council Member Bryan seconded the motion. Motion passes. NAY 0 ATTEST: Natha Willcison, City Secretary ABSTAIN 0 APPROVED: Milce Crist, Mayor 08-28-12 CC Regular Meeting Mimdes.doc 7 08-28-12 MINUTES OF CITY OF ANNA AGENDA NOTICE — CITY COUNCIL SPECIAL MEETING September 49 2012 6:30 p.m. —Anna City Hall Administration Building The City Council of the City of Anna will inet in Special Session at 6:30 p.m., September 4, 2012, at the Anna City Hall Administration Building, located at I I I North Powell Parkway (Hwy 5), to consider the following items. Welcor��e to the City Cozrrrcil Meeting. Please sign the Sign -In -Sheet as attendance. If you finish to speak on an open -session agenda item please Opinion/Speaker Registration Form and turn it in to the Cio} Secr•etar,} meeting starts. 1. Call to Order. Mayor Milce Crist called the meeting to order at 6:35 pm. 2. Roll Call and Establishment of Quorum. a record of fill out the before the Mayor Mike Crist and Council Members James T. Cook, John Hopewell, John Geren, Nathan Bryan and Becky Glover were present. 3. Invocation and Pledge of Allegiance. Mayor Crist gave the invocation. 4. Consider/Discuss/Action regarding adopting an Ordinance approving and adopting the proposed City of Anna Fiscal Year 2012 - 2013 Budget for the City of Anna, Texas. (Clayton Fulton) Director of Finance, Clayton Fulton presented the item to council. Council Member Geren made the motion to approve. Council Member Bryan seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 5. Consider/Discuss/Action regarding adopting an Ordinance setting the ad valorem tax rate per $100 valuation for 2012 tax year at $0.650332 for the City of Anna, Texas. (Clayton Fulton) Director of Finance, Clayton Fulton presented the item to council. Mayor Crist made the motion "I move that the property tax rate be increased by the adoption of a tax rate of $0.650332, which is effectively a 0.54% percent increase in the tax rate." Council Member Glover seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 09-04-12 CC Special Meeting Minutes 1 09-04-12 6. Cousider/Discuss/Action regarding a Resolution to ratify the property tax revenue increase reflected in the City of Anna FY 2013 Budget and acknowledges that the 2012 tax year ad valorem tax rate will raise more revenue from property taxes than the previous year. (Clayton Fulton) Director of Finance, Clayton Fulton presented the item to council. Council Member Geren made the motion to approve. Council Member Bryan seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 7. Discussion regarding the September 11, 2012 City Council Regular Meeting. City Manager, Philip Sanders stated that since council has been meeting every Tuesday for the last two months to not meet Tuesday, September 11, 2012. Mr. Sanders stated that items for the September 11, 2012 City Council Agenda could be postponed until the September 25, 2012 meeting. Council Members agreed with the City Manager's suggestion. Council did not enter closed session. S. CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions a. Discuss or deliberate personnel matters: City Secretary Annual Review. (Tex. Gov't Code 43551.074). b. Consult with legal counsel regarding pending or contemplated litigation and/or on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071), The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act. 9. Consider/Discuss/Action on any items listed on posted agenda for September 4, 2012 City of Anna City Council Special Meeting or any Closed Session occurring during this Special Meeting, as necessary. Council Member Geren made the motion to take no action. Council Member Hopewell seconded the motion. Motion passes. AYE 6 NAY 0 ABSTAIN 0 09-04-12 CC Special Meeting Minutes 2 09-04-12 U. Adjourn. Council Member Coolc made the motion to adjourn at 6:42 pm. Council Member Glover seconded the motion. Motion passes. NAY 0 ATTEST: Natha Willcison, City Secretary ABSTAIN 0 Mike Crist, Mayor 09-04-12 CC Special Meeting Minutes 3 09-04-12 R■ CIYY oi= ANNA, 7CXAS Council Meeting: September 25, 2012 Item No. 5 (c) City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Chief Jenlcs Account Code #: Budgeted Amount: Exhibits: 9 Yes ❑ No AGENDA SUBJECT: Issue a Proclamation for the 29`I' Annual National Night Out, 2012 SUMMARY: The 2012 National Night in the State of Texas is scheduled for Tuesday, October 2. The City of Anna Police Department will be hosting a community event beginning at 6pm at the Slayter Creels pavilion. Please join us there STAFF RECOMMENDATION: N/A 291h ;AS, the National Associat violence prevention progr, AS, the "29t" Annual Nat ether with thousands of otf mmunity crime prevention `National N1ght Out 2t)12" locally; and S, it is essential that all citizens of the �rorams and the impact that their partied 4nna; and X{OUR? HOMETOW N Council Meeting: September 25, 2012 Account Code #: Budgeted Amount: Item Nq[ o. 5 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Cit�ager Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution recommending appointment of an emergency management coordinator. SUMMARY: In accordance with Ordinance No. 581-2012 the City's Emergency Management Director (Mayor) in consultation with the City Manager has recommended that the City Council nominate Mr. Tim Gothard, the City of Anna Fire Chief, to serve as the City's Emergency Management Coordinator. After receiving the recommendation, the City Council may nominate one or more eligible persons (including the person nominated by the Emergency Management Director) to serve as the Emergency Management Coordinator. The Emergency Management Director may then designate the Council's nominee as the Emergency Management Coordinator, RECOMMENDATION: Staff recommends approval of the attached Resolution which nominates the City's Fire Chief to serve as the Emergency Management Coordinator, CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS NOMINATING AN EMERGENCY MANAGEMENT COORDINATOR WHEREAS, in accordance with Ordinance No. 581-2012 the City's Emergency Management Director in consultation with the City Manager may recommend for the City Council's consideration one or more eligible persons to serve as Emergency Management Coordinator; and WHEREAS, the Emergency Management Director in consultation with the City Manager has recommended that Mr. Tim Gothard, the City of Anna Fire Chief be nominated by the City Council to serve as the City's Emergency Management Coordinator; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Nomination of Emergency Management Coordinator In accordance with Ordinance No. 581-2012, the City Council of the City of Anna, Texas hereby nominates Mr. Tim Gothard, the City of Anna Fire Chief to serve as the City's Emergency Management Coordinator. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 25th day of September 2012. ATTEST: Natha Wilkison, City Secretary APPROVED: Mike Crist, Mayor CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 Item No. 5 e City Secretary's use only City of Anna City Council Agenda Staff Report CITY OF ANNA,TEXAS Council Meeting: September 25, 2012 Staff Contact: Jessica Perkins Account Code #: n/a Budgeted Amount: n/a Exhibits: X Yes ❑ No CONSENT AGENDA SUBJECT: Approve a Resolution amending the EDC FY 2012 Budget. (Jessica Perkins) SUMMARY: The EDC has moved money around to cover a portion of the Buxton Agreement Expenditure. The total amount of expenditures budgeted for the year was $225,000. The budget was amended one time already to include the proceeds from the loan for the Old Post Office as well as the increase in Debt Service and Interest. The budget has yet to be amended to cover the fees associated with the change order for the Old Post Office and the Buxton agreement which will increase the expenditures for the 2012 fiscal to $444,702.00 Amending Line Items: 6703 Contract services from $52950 to $61950 6711 Travel from $9000 to $2500 6721 Education and Training from $4500 to $1500 6761 Dues, Publications from $800 to $1000 6789 Debt Service from $33475 to $56,048 6790 Interest from $14,393 to $27,029 6941 Other Capital Expenditures from $225,500 to $255,500 STAFF RECOMMENDATION: Staff recommends you approve the resolution.. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS AUTHORIZING AND APPROVING THE ANNA ECONOMIC DEVELOPMENT CORPORATIONS' REQUEST FOR A BUDGET AMMENDMENT WHEREAS, the City of Anna intends to allow and approve a budget amendment to the Anna EDC's current fiscal year budget; WHEREAS, the City Council of the City of Anna has determined that the reallocation of funds is the best use of the EDC's funds; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority to Amend Budget The City Council of the City of Anna hereby approves the Anna EDC's budget amendment request. PASSED AND APPROVED by the City Council of the City of Anna this day of 2012 APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO. 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M U) M O O O O O h U) U) M m o) h h U) O Ld O U) o'i vz C6 of ri Ui Uj of e{ t+j N 60 t9 tq 69 t5 6A 69 t3 t9 t9 tq 6N9 tq tq OP O 0000 n n OPN 6 0 0 0 N N M of t0 0 di ri M O OOO P 0) 0h M hMU) O OOO N 0) MM0) N`0) N J U O O t6 0) a ? a ¢ ' tOi cOi u u u u cOi cOi o0 ` g U U U U p ¢ ¢ � to MtornM a °imrnoMot.00 M ro.�C' „Uj h h 0.-NMto h c c c� � N N N M M M co M M M U U U U U M U U U U U U U U ® 0 0 0 00 0 ® 0 0 0 M O O NV O O 0 ® tq 69 N O c t' a b9 000^ 0 0 0 0 0 0 rn o rn t3) a C `o v c o UUU U O O O N = O t0 tp M U O O O O j 0 N U. C 'a O N LL c W N U to to er rn mdQ N m u uY O ¢ Item No. 5 (f) City Secretary's use only n City of Anna City Council Agenda Staff Report CITY OF ANNA, TEXAS Council Meeting: September 25, 2012 Staff Contact: Jessica Perkins Account Code #: n/a Budgeted Amount: n/a Exhibits: X Yes ❑ No CONSENT AGENDA SUBJECT: Approve a Resolution amending the CDC FY 2012 Budget. (Jessica Perkins) SUMMARY: The CDC has moved money around to cover a portion of the Buxton Agreement Expenditure and to recognize the bond proceeds issued in August. The total amount of expenditures budgeted for the year was $217,857. The amended budget will cover the fees associated with the sale of the bonds and the Buxton agreement which will increase the expenditures for the 2012 fiscal to $272,807.00 Amending Line Items: 6703 Contract services from $10,000 to $75,000 6711 Travel from $250.00 to $0.00 6753 Legal from $13,500 to $6,500 6761 Dues, Publications from $250.00 to $450.00 6941 Other Capital Expenditures from $30,000 to $27,000 STAFF RECOMMENDATION: Staff recommends you approve the resolution. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS AUTHORIZING AND APPROVING THE ANNA COMMUNITY DEVELOPMENT CORPORATIONS' REQUEST FOR A BUDGET AMMENDMENT WHEREAS, the City of Anna intends to allow and approve a budget amendment to the Anna CDC's current fiscal year budget; WHEREAS, the City Council of the City of Anna has determined that the reallocation of funds is the best use of the CDC's funds; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority to Amend Budget The City Council of the City of Anna hereby approves the Anna CDC's budget amendment request. PASSED AND APPROVED by the City Council of the City of Anna this , 2V12 APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 p M N M LO V M r M O) N M 00 p O0 t0 O O 00 O 1` W M W p (D C) 0 q O Mr�: N OR �t O to O d' LO d- p r r 0 r M O) Co N O o) O M p 0 t-: (MONONOMO(YiONO cp0)t`0)hOr000r00NO p 000 p M LO LO � r 1` vt LO LO M to tO (0 O M O r� LO M r r LO N to p (D 0) 6s to r (0 r (0 r LO O 9t 00 N (o O M h LO 'ct M N r r 0 C p 0 (p LO O V- O M 00 N (o LO (vj N O M 00 1` (o Lo tt co N p" O tp (o LO LO d' M M N N co c- (a to to W to to Eo to to N N - 6cj to ca UY to b9 to Eo 69 to to 69 69 tyj Eo N O CV C f6 R m V� V-LO(Dw O NN7 W(n�NNa)NO 0)<t 0)00 CD i %tmm o) N LO V V M M d; Lo CO W O Co O N M Cr)M M M N O 0) r; O qcz O i. t` N r N t` N t� N r N t� M4 (p CV hNKNKNK N(o OO (o NO) Nd•L0 r-000 M 00t\ LO4rtN t-0)00(O Lo(`)N C) V 'ct d^ Lo LO LO Ln LO Lo (0 (0 (O e- r �- t- �- p O O O p O p Ln Ln LO LO LO LO LO LO Lo Lo Lo LO V• r-" �-' r- e= e•: e- c; �-= O (D �-' to to 69 6cy w 64 w (o (o to w Hj f29 to NEo ❑ C O Q W ��Q 0) cq ti c O -c LL LL a > >° LL LL LL LL LLG LL LL JJJ JJI--JJHLL JjJ�- i QLL �JJj JJHJ ~F JJJJj m LO L(j �• Q T fl. 0) > (.i U_ N .w C N 04 N O l0 U O N c .j N Q o M j 3 O) � (� O N N N o O_ 0= o N U (CO p O Z ❑ LL 2 Q -) -) Q U) (o O Z❑ -> LL c Q Q U Cp U U ° U M 000000h•00 OONNp p O ®7000000 OOOO 'OOMr(OM N LO OOON p000 %t rt(M p OOO 0 0 0 0 0 0 ,�;M COMMOIF CO W OON 00 p000 __ p p O 0000 LnM LO �.00 V M V M(O (n N O Lo n'd' 0000 00000)M LO NN_N_(O LO p0000tOM N 0 0 0 C) N 00 :c)CO co 1h 00 N LO N(o(o p000 (o M O r N N r 0 r N N p : M N LO V^ r N 00 N N W Lo tO (O Ln � O � d3 U.)Lo Lo OCo E9 NT rt M N C) LO N C) V•M (6 (O LO LO LO V• M (M nj N N N tirrt�1`LO V'MM NLOMOLO to too to w Eo tE3 to to tl. �Nto .Eo H3 to to to 69 to to ER Le r' Eq (a Eo O) l6 m _ O O O O O O co (9)O(D O O 00 O O O O O Oh N LOM �r N O O .O O O O CD Cl LOO Lo oo CD C) OOOO =Tt ON ON (0 (0 0) OMO C) C) 0 0 6 0 6 O hh 00 N 4 C;O O C; LO N r 4t (o 4 6 O N LO r� N O O 's O O O O O O M co 0) O O O O O t� Nt (o LO rmqT LO 00 (o r N LO M O Cl M V• N �t C) N (0 O Lo O O to N � t� cq 00 V' (o N O O r N LO qqT M v LO �- M LO v ON CD M N 10 N (7 O co w 4 N TZ�Q .c' �) a N m m m E W La to (ice O O i O �L G) N N O N � U U E C am' Q N p J LL to Q N LO '� Y Y a m 3 .N � 'a' Q. O o O O O O O O O ca O. Q N Z . (� C to U (6 L L C ti_ o T t cz h ti (7 N N N c6 0 .0 O= `. U U U U U U U (� C qtj (Ui C U N 3 U Y U Y N Y G ` N (L co ¢ 0JU Jj L o(7000�U' N a)7MLO LO e-0)OI�p L, a iNLOp N(o (00))-(opM (O co �N00p 1�cop M N M M �t(o tl�(o to (a ♦, W (1. NN M"t Vt LO ( NN CV) CO) M V Vt 4) QMMLo QNN V U M N N N N N N N N N N N N M N N N N N N -. N N N N N N N N N N 0) N N N �' (0 •`-G Y �[ to (D Y Y •Y .Y `1 Y �[ � � Y `1 ` 0 =[ ` u (a Y Y Y CO Y Y `-G W0 (o : U U U U U U U (0 (o (o U U U U U U U U U �� U U U U U U (O U U U CO U U U C)O00000000 CDO N((o 0 U O � C O ((0 N co co LO M O (0 LO r r N to to to to w tR (& Efl 09 m OMO , 0 r O n M U7 r w M M mot• O) N T 0 N L N a _� r V O Q. N C p i O �. c 4 � Q m •a .mac... o m Nirz Vt LO O V CO O (') to LO U (i d• it VC C) £ coN N N ti N N N V U U Q (NO U U U p t0 1 lT�+) 5otir�3't'i i Council Meeting: September 25, 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 5 (g) City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Maurice Schwanke Date Prepared: 09/19/12 Exhibits: ■Yes ❑ No AGENDA SUBJECT: Approve the Preliminary Plat of West Crossing Phase III. SUMMARY: Recently the Commission and City Council approved a preliminary plat for West Crossing Phase Il. The Construction Plans for Phase II and Phase III are currently being review for final acceptance. The plat conforms to the Planned Development Zoning. Currently, Construction plans are under review by the City and the PLANNING AND ZONING COMMISSION ACTION: The Planning and Zoning Commission recommended approval of the plat unanimously at their meeting September 10, 2012. RECOMMENDED ACTION: The Staff is recommending approval of this plat. 0 �U�CRNB r °p Ro,r/ J �7 � DR�E ti� q m S gey J m •� n bm ro QO SUM Rm -z ct lea r r,- HACKBEB&Y (. a°' a.o.•. DRIVE 0 00 mm HONEYiYELL � � DRIVE its SS S 99, T €6 � •ZZ R F1 t� �i R h1 R hi f� f� R aR P E 94 i 2 2 x x x `2 N N N N N 1N 2 ° OILR q Elf q t = ` sill 9R11kiss Z �r3�rPR'Y p ss � a �s � qr iF 23 i am o ro 3$4:IIII'� to �9�9t 's•��� � 3� � �Q M �p �'��s oIX � �x s 8 8a a Q. g g� sit 9 ° $r s g EE 4 g B � s 9 a I $ R he Jm -La = s 3g 9 No. i 3c y I9 rg {� g p ! y I Orr _as 9 el it sq all II�9s $:glal o a�T, P am % h lows °r� b k' o � jai r O 3 n Fc �'� x o 'tl pN 1•.w X{OUR} HOMETOWN Council Meeting: September 25, 2012 Account Code #: Budgeted Amount: Item No. 5 (ll) City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Cit�Mana er Exhibits: X Yes ❑ No AGENDA SUBJECT: Approve a Resolution determining not to update land use assumptions, capital improvements plan, or impact fees and directing publication of notice of same. SUMMARY: Periodically, the City is required to review our impact fees and make a determination regarding the need to update the fees and studies upon which the fees are based. The city does not plan to update the supporting studies during this current review period, but will recommend an update during the next fiscal year. RECOMMENDATION: In order to meet the requirements in state law for the current review period, Staff recommends approval of the attached Resolution determining not to update land use assumptions, capital improvements plan, or impact fees and directing publication of notice of same. Approval of the Resolution does not in any way restrict our ability to update the impact fees and associated studies at any time in the future. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS DETERMINING NOT TO UPDATE LAND USE ASSUMPTIONS, CAPITAL IMPROVEMENTS PLAN, OR IMPACT FEES AND DIRECTING PUBLICATION OF NOTICE OF SAME. WHEREAS, the City of Anna, Texas (the City) has previously adopted an Ordinance charging certain water and wastewater impact fees; and, WHEREAS, the City is required to periodically review and update said impact fees; and WHEREAS, if, at the time a review and update is required, the City Council determines that no change to the land use assumptions, capital improvements plan, or impact fee is needed, it may, as an alternative publish a notice as allowed under Section 395,0575 of the Texas Local Government Code; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Determination and Publication of Notice. The City Council hereby determines that no improvements plan, or impact fee is needed of the Council's determination as required Government Code. change to the land use assumptions, capital and directs the City Manager to publish notice under Section 395.0575 of the Texas Local PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 25t" day of September 2012. ATTEST: APPROVED: Natha Wilkison, City Secretary Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 Item No. 5 i City Secretary's use only �w City of Anna City Council Agenda Staff Report CITY OF ANNA, TEXAS Council Meeting: September 25, 2012 Staff Contact: Jessica Perkins Account Code #: n/a Budgeted Amount: n/a Exhibits: X Yes ❑ No CONSENT AGENDA SUBJECT: Approve a Resolution approving a Project Agreement with the Anna Community Development Corporation. (Jessica Perkins) SUMMARY: The CDC issued 1.6m in bonds to assist the City with Parlc Projects. The City is requesting a Project Agreement with the Anna CDC to define the disbursement of these funds to contractors who will perform work on the parks. STAFF RECOMMENDATION: Staff recommends you approve the resolution.. CITY OF ANNA, TEXAS A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS AUTHORIZING AND APPROVING A PROJECT AGREEMENT WITH THE ANNA COMMUNITY DEVELOPMENT CORPORATIONS WHEREAS, the City of Anna intends to allow and approve a project agreement with the Anna Community Development Corporation ("CDC'); WHEREAS, the City Council of the City of Anna has determined that the project agreement with the CDC is necessary for the disbursement of funds for and management of park projects; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority to Amend Budget The City Council of the City of Anna hereby approves the Project Agreement attached to this resolution as Exhibit A and authorizes the City Manager to execute same on its behalf. PASSED AND APPROVED by the City Council of the City of Anna this 2012 Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 i CITY OF ANNA, TEXAS AND ANNA COMMUNITY DEVELOPMENT CORPORATION 2012 PROJECT AGREEMENT -2- CITY OF ANNA, TEXAS AND ANNA COMMUNITY DEVELOPMENT CORPORATION 2012 PROJECT AGREEMENT THIS PROJECT AGREEMENT ("Agreement"), dated as of September 25, 2012, is executed by and between the City of Anna, Texas (the "City"), and the Anna Community Development Corporation the "Corporation"). WITNESSETH WHEREAS, the Corporation has been approved, authorized and incorporated, and exists and operates as a duly constituted authority and instrumentality of the City in accordance with Article 5190.6, Section 413, Texas Revised Civil Statutes Ann., and now operating under Texas Local Government Code, Chapters 501, 502 and 505 (the "Act"); WHEREAS, at an election held in accordance with the provisions of the Act, the voters of the City approved a proposition (the "Proposition") on the question of the adoption of a sales and use tax within the City at a rate of one-half of one percent (the "Sales Tax") to undertake economic development projects as described in Section 4B of the Act, including but not limited to projects for downtown development, facilities, and public parks, park facilities and events including senior citizen projects, projects for the promotion of professional and amateur athletics and sports including stadiums, ball parks, auditoriums, projects related to entertainment, convention, tourist, and exhibition facilities, amphitheaters and concert halls, open space improvements, learning centers, municipal buildings, educational facilities and facilities for use by institutions of higher education, museums, and related stores, restaurant, concession and automobile parking facilities, transportation facilities and roads, streets, recycling facilities, projects to promote new or expanded business enterprises including facilities to promote job creation and retention, job training facilities, and public safety facilities, drainage and storm water facilities and related improvements, demolition of existing structures, targeted infrastructure and any other improvements or facilities that are related to any of the above projects and any other authorized project that the Board of Directors of the Corporation determines will promote new or expanded business enterprises, and the maintenance and operations expenses for any of the above described projects, as authorized by the Act; WHEREAS, the City Council of the City (the "City Council") and the Board of Directors of the Corporation (the "Board ") have determined to undertake projects to provide (i) public park and open space improvements including sports fields, pavilions, trail improvements, parking facilities, roads, restroom facilities, camping sites, skate board park and other park, open space, and recreational facilities, (ii) signage, lighting, landscaping, sidewalks, outdoor furnishings and other improvements for downtown streets to improve access and availability to the businesses and other establishments on and adjacent to downtown streets, and (iii) maintenance and operating costs of such projects, and other purposes permitted by law, in order to provide improvements for public park and open space purposes the "Improvements"), all as authorized by the Act and the Proposition; WHEREAS, the parties hereto find it necessary and advisable to enter into this Agreement with respect to the Improvements in accordance with Texas Local Government Code, Section 501.054 to set -1- forth the duties and responsibilities of the respective parties for the implementation and funding of the Improvements. NOW, THEREFORE, in consideration of the covenants and agreements herein made, and subject to the conditions herein set forth, the City and the Corporation agree as follows: Section 1. DEFINITIONS AND INCORPORATION OF PREAMBLES. The terms and expressions used in this Agreement, unless the context shows clearly otherwise, shall have meanings set forth herein, including terms defined in the preambles hereto, which preambles are incorporated in and made a part hereof for all purposes. Section 2. FINANCING OF IMPROVEMENTS. The parties agree that the costs of the construction of the Improvements, in the amount of $ 1,645,000.00, will be paid from the proceeds of the Anna Community Development Corporation Sales Tax Revenue Bond, Series 2012-13, in the aggregate principal amount of $1,645,000.00 (the 'Bond") issued or to be issued and sold by the Corporation. The City and the Corporation acknowledge and agree that said Bond may be issued for other purposes in addition to providing funds to pay the costs of the Improvements. Section 3. PROJECT MANAGEMENT, FUNDING, AND PAYMENTS. The Corporation agrees to fund the Improvements with the Bond proceeds and the City agrees to manage the project(s) and contract(s) necessary to implement the Improvements, including but not limited to managing the Bond proceeds, subject to oversight by the Corporation. Said Bond proceeds shall be transferred to the City in trust and the City is authorized hereby to draw finds, make withdrawals, issue checks, and otherwise manage said Bond proceeds in accordance with existing City policies and under oversight of the Corporation. The City shall provide regular reports to the Corporation regarding expenditures made from Bond proceeds and status of the implementation of Improvements. Section 4. CONSTRUCTION CONTRACTS; OWNERSHIP OF THE IMPROVEMENTS. (a) The City will construct the Improvements and shall be solely responsible for the construction and maintenance of the Improvements, and the Corporation shall have no liability with respect to the construction, operation or maintenance of the Improvements. (b) Prior to the advertisement of bids for acquisition or construction of the Improvements or any portion thereof, the Board of the Corporation or its Chief Administrative Officer shall have the opportunity to review the design plans and specifications and make its recommendations to the City regarding such design plans and specifications. (c) The Improvements shall be owned by the City. Section 5. FINANCING OF THE IMPROVEMENTS, CONSTRUCTION AND COMPLETION. The City agrees that upon receipt of the proceeds of sale of the Bonds it will proceed with due diligence with the construction and completion of the Improvements. The City does not anticipate delays in the construction of the Improvements and the Corporation shall not be liable for any damages caused by any delays in completion of the Improvements or any additional costs in reference to the Improvements. -2- Section 6. FORCE MAJr. URE. If, by reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall means acts of God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the landslides, lightening, earthquakes, fires hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines, or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. Section 7. REGULATORY BODIES. This Agreement shall be subject to all valid rules, regulations, and laws applicable thereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. Section 8. COUNTERPARTS. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. Section 9. SEVERABILITY. In case any provision herein shall be invalid, illegal, or unen- forceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 10. TERM OF AGREEMENT. The term of this Agreement shall be for the period during which the Bonds are outstanding and the Improvements are being implemented. IN WITNESS WHEREOF, The Corporation and the City, acting under authority of their respective governing bodies have caused this Agreement to be duly executed and effective as of the date first set forth above. ANNA COMMUNITY DEVELOPMENT CORPORATION President, Board of Directors CITY OF ANNA, TEXAS Philip Sanders, City Manager -3- X{OUR} 2iOMETOWN Council Meeting: September 25, 2012 Account Code #: Budgeted Amount: Item No. 5U_ City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: City Manager Exhibits: X Yes ❑ No AGENDA SUBJECT: Approve a Resolution authorizing the submission of a Texas Community Development Block Grant Program Application to the Texas Department of Agriculture . SUMMARY: The City is compiling an application to the Texas Community Development Block Grant Program funded through the Texas Department of Agriculture. In the North Central Texas region (NCTCOG), this program typically awards grant funds to critical infrastructure projects, primarily water and sewer. Applications are accepted on a biennial basis and are due on October 26th this year. The City's application includes approximately 4,466 linear feet of 8 inch and 6 inch sewer line primarily in the southern part of the city along Interurban (see attached map). The maximum grant funds for the NCTCOG region is $275,000. The City will request the full amount of grant while committing to a $149,220 local match. Local match is a significant scoring criterion, in addition to other items like poverty rate, per capita income and unemployment rate. The total estimated project costs are $424,220 (see attached budget estimate). The CDBG application process requires that the City Council express its desire to submit an application, identify the grant and local match amounts and authorize a signatory for the application and grant should it be awarded. RECOMMENDATION: Staff recommends approval of this Resolution. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS, AUTHORIZING THE SUBMISSION OF A TEXAS COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM APPLICATION TO THE TEXAS DEPARTMENT OF AGRICULTURE FOR THE COMMUNITY DEVELOPMENT FUND; AND AUTHORIZING THE CITY MANAGER TO ACT AS THE CITY'S EXECUTIVE OFFICER AND AUTHORIZED REPRESENTATIVE IN ALL MATTERS PERTAINING TO THE CITY'S PARTICIPATION IN THE TEXAS COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM. WHEREAS, the City Council of the City of Anna, Texas (the "City Council") desires to develop a viable urban community, including decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low4o- moderate income; and WHEREAS, certain conditions exist which represent a threat to the public health and safety; and WHEREAS, it is necessary for and in the best interests of the City of Anna, Texas (the 'City") and its citizens for the City to apply for funding under the Texas Community Development Block Grant Program ("TxCDBG"); NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: 1. That a TxCDBG application for the Community Development Fund is hereby authorized to be filed on behalf of the City with the Texas Department of Agriculture; 2. That the City's application be placed in competition for funding under the Community Development Fund; 3. That the application be for $275,000 in grant funds to carry out proposed sewer system improvements; and 4. That the City Council directs and designates the City Manager as the City's Chief Executive Officer and Authorized Representative to act in all matters in connection with the TxCDBG application and the City's participation in the TxCDBG. 5. That it further be stated that the City is committing $149,220 as a matching contribution to be composed of general and/or sewer revenue funds toward City of Anna, Texas Resolution No. Page 1 of 2 acquisition, construction, engineering and administrative activities relating to this sewer system improvements project. PASSED AND APPROVED by the City Council of the City of Anna, Texas this the 25tn Jay of September, 2012. APPROVED: Mike Crist Mayor ATTEST: Natha Wilkison City Secretary City of Anna, Texas Resolution No. Page 2 of 2 ANNA 2013/14 CDBG BUDGET Original Budget Construction Administration Acquisition Engineering TOTALS Grant $275, 000. 00 $275, 0000 00 Local $31, 9900 00 $35; 000, 00 $22, 330, 00 $59, 900. 00 $14%220.00 TOTALS $306,990.00 $35,000.00 $22,330.00 $59,900.00 $424,220.00 X{OTTR} iIORN1ETOW N Council Meeting: September 25, 2012 Account Code #: Budgeted Amount. Item No. 5 (1 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: City Manager Exhibits: X Yes ❑ No AGENDA SUBJECT: Approve a Resolution committing matching funds in support of activities associated with the improvements proposed in an application to the Texas Department of Agriculture for the Community Development Block Grant Program. SUMMARY: The City is compiling an application to the Texas Community Development Block Grant Program funded through the Texas Department of Agriculture. The maximum grant finds for the NCTCOG region is $275,000. The City will request the full amount of grant while committing to a $149,220 local match. Local match is a significant scoring criterion, in addition to other items like poverty rate, per capita income and unemployment rate. The total estimated project costs are $424,220. The CDBG application process requires that the City Council express its commitment to provide the required 1)149,220 project match should the grant be awarded. If the City is awarded this grant, Staff will recommend that the budget be amended that any necessary matching finds be transferred from the Water & Sewer fund balance. RECOMMENDATION: Staff recommends approval of this Resolution. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS, COMMITTING MATCHING FUNDS IN SUPPORT OF ACTIVITIES ASSOCIATED WITH THE 2013/2014 SEWER SYSTEM IMPROVEMENTS PROPOSED IN AN APPLICATION TO THE TEXAS DEPARTMENT OF AGRICULTURE FOR THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM. WHEREAS, the City Council of the City of Anna, Texas (the "City Council") has approved the submission of an application to the Texas Department of Agriculture for funding under the 2013/2014 Texas Community Development Block Grant Program ("TxCDBG"); and WHEREAS, certain conditions of that application require a commitment of local support for the referenced project in said application; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: 1. the City of Anna, Texas (the "City") commit to expending not less than the equivalent of $149,220 as a matching contribution toward acquisition, construction, engineering and administrative activities relating to sewer system improvements described in the City's TxCDBG application; 2. the matching contribution is to be composed of general and/or water and sewer revenue funds; and 3. the above -referenced resources for the City's matching contribution will be used to assist in the completion of all related actives involved in the sewer system improvement activities described in the 2013/2014 TxCDBG application. PASSED AND APPROVED by the City Council of the City of Anna, Texas this the 25t" day of September, 2012. Mike Crist Mayor ATTEST: Natha Wilkison City Secretary City of Anna, Texas Resolution No. Page 1 of 1 Item No. 5 (I) City Secretary's use only City of Anna City Council Agenda Staff Report CfTY OF ANNA, TEXAS Council Meeting: September 25, 2012 Staff Contact: Jessica Perkins Account Code #: n/a Budgeted Amount: n/a Exhibits: X Yes ❑ No CONSENT AGENDA SUBJECT: Consider/Discuss/Action regarding passing a resolution approving an annual sponsorship agreement between the EDC and the Greater Anna Chamber of Commerce (Jessica Perkins) SUMMARY: The EDC and CDC have historically supported the annual events of the !ACC. For the past two years the Corporations have entered into a fiscal year agreement I or sponsorship. The annual agreement has allowed for better planning and budgeting. The EDC has approved the FY 2012-2013 agreement that is attached. STAFF RECOMMENDATION: Staff recommends you approve the agreement. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS APPROVING THE ANNA ECONOMIC DEVELOPMENT CORPORATIONS' 2012- 2013 FISCAL YEAR SPONSORSHIP AGREEENT WITH THE GREATER ANNA CHAMBER OF COMMERCE. WHEREAS, the Anna EDC have historically supported the annual events of the GACC, and; WHEREAS, for the past few years the Anna EDC has entered into a fiscal year agreement to sponsor said events in exchange for certain promotional benefits provided by the GACC, and; WHEREAS, the annual agreements have allowed for better planning and budgeting by the Anna EDC; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Sponsorship Agreements The City Council of the City of Anna hereby approves the AGREEMENT FOR SPONSORSHIP COMMITMENT FOR THE 2012-2013 FISCAL YEAR between the EDC and the GACC attached hereto as EXHIBIT 1, incorporated herein for all purposes. PASSED AND APPROVED by the City Council of the City of Anna this 2012 APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 THIS AGREEMENT FOR SPONSORSHIP COMMITMENT (this "Agreement") is made by and between the Anna Economic Development Corporation ("EDC"), and the Greater Anna Chamber of Commerce, Inc. ("GACC") and entered into on this day of , 20 Section 1. Summary During the EDC's 2012-2013 fiscal year, the EDC hereby promises to make certain payments to the GACC to sponsor certain GACC events that GACC promises will promote the EDC and the growth and the development of the City. The amount of each payment is specified under this Agreement for each corresponding GACC event. Each payment is to be provided to the GACC prior to each event, but is contingent upon GACC providing a letter of intent to organize and hold the corresponding event and meet the corresponding benchmarks set forth herein, as well as to adequately promote the EDC and the City. Section 2. Definitions For purposes of this Agreement, the following meanings shall apply: (a) City shall mean the City of Anna, Texas. (b) EDC shall mean the Anna Economic Development Corporation, a Texas nonprofit corporation. (c) GACC shall mean the Greater Anna Chamber of Commerce, Inc., a Texas nonprofit corporation. (d) Sponsor shall mean a person or corporation that pays or provides something of value to the GACC in connection with a GACC event in exchange for GACC providing promotional marketing or any other benefits associated with the GACC event. (e) Sponsorship Benefits shall mean at least that amount of sponsorship designation, advertising in print and broadcast media, marketing materials and opportunities, onsite and offsite signage and marketing, public relations benefits and all other benefits listed in this Agreement and/or otherwise available that would promote the EDC to an extent equal to or greater than any other Sponsor of the GACC event in question. In other words, Sponsorship Benefits shall provide the EDC with at least "equal billing" compared with any other Sponsor and shall provide the highest level of promotional or other benefits made available or provided to any other Sponsor, regardless of the amounts paid by the EDC as compared with other Sponsor Designation includes and shall mean: AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 1 OF 8 (1) the EDC shall be named as a Sponsor of the GACC event, that the EDC may use the same designation in all GACC-approved advertising, merchandising and promotions; and (2) the EDC shall have first right of refusal as a Sponsor of any subsequent events arising out of any of the GACC events in future years. Section 3. General Requirements 3.01 Letter of Intent The GACC agrees to provide to the EDC a letter of intent prior to each event and prior to the payment to GACC of any EDC funds for such event. The letter of intent will be drafted on a standard form attached as "Exhibit A", and incorporated herein as if set forth in full. The letter of intent shall include a promise by the GACC to organize and hold the specific event setting forth its purpose and goals including the benchmark provisions set forth in this Agreement and shall constitute further binding contractual responsibilities of the GACC to attain those benchmarks and adequately promote the EDC. The letter of intent for any given event may set forth a different amount requested to be paid by the EDC than the amount estimated for such event as set forth in Section 4 of this Agreement. 3.02 Sponsorship Benefits The GACC agrees to furnish all materials, equipment, tools and other items necessary to provide Sponsorship Benefits to the EDC, and, in addition, all Sponsor Designations, advertising in print and broadcast media, marketing materials and opportunities, onsite and offsite signage and marketing, and all other public relations and promotional benefits as further described in this Agreement under each specific event. Advertising in print and broadcast media includes the EDC's identification as Sponsor on all print advertising secured promoting the GACC event. All such advertising shall reference the EDC as: The City of Anna Economic Development Corporation. Marketing materials and opportunities, onsite signage and marketing, and public relations benefits will be provided for under each specific event in this Agreement. Section 4. GACC Events The GACC and EDC anticipate EDC sponsorship of the following events and provides specific terms of compensation, Sponsorship Benefits, goals and benchmarks to gauge promotional impact: 4.01 Glowfest 2012 Name/Purpose: Glowfest 2012, Community Fall Festival AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 2 OF 8 Date, Time, Location of Event: All Day on Saturday, October 27, 2012 at Slater Creek Park (and surrounding private property) Deadline for GACC to provide letter of intent to EDC: Monday, September 24, 2012 Estimated Compensation amount: $7,50000 Due Date of Payment: Monday, October 15, 2012 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: EDC Logo on pre -event banners; EDC Logo on registration form; listed as "Platinum Level" sponsor in newspaper advertisement and article Promotional Benchmark Requirements: GACC will provide approximate headcount of attendees' as well geographic locations from where attendees reside. 4.02 2012 Annual Banquet Name/Purpose: 2013 Annual Banquet- Awards and appreciation banquet as well as a promotional event for current and prospective businesses in our community. Date, Time, Location of Event: 5:OOpm — 11:OOpm Saturday, February 23, 2013, Longhorn Hill Party Barn in Anna, TX Deadline for GACC to provide letter of intent to EDC Estimated Compensation amount: $500000 Due Date of Payment: Monday, February 11, 2013 Monday, January 14, 2013 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: One table at the banquet; full -page advertisement placed on back of program; advertisement during event including signage and in PowerPoint presentation Promotional Benchmark Requirements: GACC will provide list of attendees 4.03 Anna Fireworks Event Name/Purpose: 2013 Anna Fireworks Event, Community Festival Date, Time, Location of Event: 8pm —Conclusion of Fireworks, Thursday, July 4, 2013 at Slater Creek Park and Anna ISD Football Stadium Deadline for GACC to provide letter of intent to EDC: Monday, June 3, 2013 Estimated Compensation amount: $700000 Due Date of Payment: Monday, June 17, 2013 AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 3 OF 8 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: EDC Logo on pre -event banners; EDC Logo on registration form; listed as sponsor in newspaper advertisement and article Promotional Benchmark Requirements: GACC will provide and estimated number of attendees Section 5. Compensation In consideration of the performance of GACC's obligations under this Agreement, including the provision of Sponsorship Benefits described herein, the EDC agrees to pay the GACC the total amount of compensation of ($19,500) during the EDC's fiscal year 2011-2012, subject to the conditions set forth in this Agreement. Before the EDC shall have any obligation to make any payment to GACC with respect to any given event described in Section 4 of this Agreement, the GACC must timely provide the EDC with a letter of intent —signed by a GACC representative authorized to contractually bind the GACC—as described in Section 3.01 of this Agreement and the GACC must submit said letter of intent to the EDC before the applicable deadline for such event as set forth in Section 4 of this Agreement. The total ($19,500) amount of compensation shall be made in three separate payments with the amount of each payment being determined by the EDC by electing one of the two following options per GACC event: (1) the estimated compensation amount set forth in Section 4 of this Agreement; or (2) a different amount requested by GACC that is set forth in the letter of intent described in Section 3.01 of this Agreement and attached hereto as Exhibit A. If the EDC decides to honor any GACC request for a different amount than what is set forth in Section 4 of this Agreement, the EDC shall thereafter have discretion to alter the amount of payments it makes with respect to any remaining events so that its overall compensation paid to the Chamber under this Agreement does not exceed ($15,000) during the EDC's 2012-2013 fiscal year. The GACC shall provide the EDC with a written receipt. Section 6. Licenses and Permits The GACC shall obtain and pay for any and all permits, licenses, disposal fees, or any other costs required for any of the GACC events and to fulfill this Agreement. The GACC shall take all reasonable steps necessary to ensure that all state, federal, and local permitting and licensing requirements are met at all times during all GACC events. The GACC must comply with all federal and state laws, and local ordinances while organizing and participating in the GACC events. Section 7. Independent Contractor Status/ Liability/ Indemnity It is expressly understood and agreed that the EDC has no right of control, supervision, or direction over any work performed by the GACC relating in any way to AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 4 OF 8 the GACC's undertaking of any of its events (the "Work"), including but not limited to its employees, agents, contractors, or its subcontractors, nor does the EDC have any control, supervision or direction of the means, methods, sequences, procedures, and techniques utilized to complete any the Work. There shall be no joint control over the Work. The GACC agrees to fully defend, indemnify and hold harmless the EDC from any claim, proceeding, cause of action, judgment, penalty, or any other cost or expense arising or growing out of, associated or in connection with the Work. The indemnification includes, but is not limited to, attorney fees incurred by the EDC in defending itself or in enforcing this Agreement. By entering into this Agreement, GACC waives all rights and remedies in law or in equity except to seek enforcement of specific performance, without any right to reimbursement of costs or attorney fees, of the obligations under this Agreement. This provision is not intended to and does not waive any of the EDC's governmental immunities, including immunity from suit and liability. Section 8. Insurance GACC shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in conjunction with the performance of the Work or in any way related to the GACC's undertakings performed in connection with the GACC events, including but not limited to coverage for GACC, its agents, representatives, employees, contractors, or subcontractors. The form and limits of such insurance, together with the underwriter thereof in each case, must be acceptable to the EDC but regardless of such acceptance it shall be the responsibility of the GACC to maintain adequate insurance coverage at all times. Failure of the GACC to maintain adequate coverage shall not relieve the GACC of any contractual responsibility or obligation. Each policy shall provide that there will be no alteration or modification which reduces coverage in any way prior to 30 days written notice being given to the EDC. A copy of each policy, or at the EDC's discretion, a certificate of insurance, shall be filed with the EDC Secretary. Section 9. Default 9.01 Events of Default The occurrence, at any time during the term of the Agreement, of any one or more of the following events, shall constitute an Event of Default under this Agreement: (a) the failure of GACC to timely provide the EDC with a properly executed letter of intent in accordance with the terms of this Agreement prior to each event; (b) the failure of the GACC event to occur on the scheduled date, or —if the event cannot occur on the originally scheduled date due to inclement weather —the failure of the GACC event to be rescheduled and occur in accordance with Section 18 of this Agreement; AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 5 OF 8 (c) the failure of GACC to provide the EDC with all Sponsorship Benefits enumerated in this Agreement for each event; (d) the failure of GACC to meet each promotional benchmark requirement; (e) the failure of the EDC to pay the GACC according to the compensation terms of each event when such payment may become due; and (f) the EDC's or GACC's breach or violation of any of the material terms, covenants, representations or warranties contained herein or GACC's failure to perform any material obligation contained herein. 9.02 Uncured Events of Default Upon the occurrence of an Event of Default by EDC that can be cured by the immediate payment of money to GACC, EDC shall have 10 calendar days from receipt of written notice from GACC of an occurrence of such Event of Default to cure same before GACC may exercise any of its remedies as set forth in this Agreement. Upon the occurrence of an Event of Default by GACC that does not include the failure to abide by a deadline or to a failure described in Section 9.01(b), it shall have 10 calendar days from receipt of written notice from EDC of an occurrence of such Event of Default to cure same, or, if same cannot be effectively cured within 10 calendar Jays and fully and effectively provide EDC with the Sponsorship Benefits, the default may be cured by refunding EDC's entire sponsorship fee, unless such Event of Default creates or contributes to an emergency situation in which injury to persons or property reasonably appears imminent, in which case EDC is immediately entitled to exercise or seek all rights available to it at law or in equity. If with respect to any given event set forth in Section 4 of this Agreement, there is a failure of GACC to meet a deadline or a failure described in Section 9.01(b), the EDC shall be entitled to a full refund of any amounts paid by the EDC to GACC for such event. Section 10. Amendment; Termination This Agreement may not be amended except pursuant to a written instrument signed by both parties. This Agreement shall terminate once both parties shall have completed performance of their respective obligations hereunder. AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 6 OF 8 Section 11. Notice Notice as required by this Agreement shall be in writing delivered to the parties via postage prepaid, U.S. certified mail, return receipt requested, at the addresses listed below: EDC GACC EDC President Anna Economic Development Corporation 101 N. Powell Parkway Anna, Texas 75409 GACC Director Greater Anna Chamber of Commerce P.O. Box 1256 Anna, Texas 75409 Each party shall notify the other in writing within 10 days of any change in the address information listed in this section. Section 12. No Waiver of Immunity Nothing in this Agreement waives any governmental immunity available to the EDC under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Section 13. Entire Agreement This Agreement represents the entire and integrated Agreement between EDC and GACC and supersedes all prior negotiations, representations and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Section 14. Governing Law and Venue This Agreement shall be governed by the laws of the State of Texas as to interpretation and performance. Any and all legal action necessary to enforce this Agreement shall be brought in a court of competent jurisdiction in Collin County, Texas or in the United States District Court for the Eastern District of Texas, Sherman Division. Section 15. Severability The provisions of this Agreement are severable. In the event that any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement shall be found to be contrary to the law, or contrary to any rule or regulation having the force and effect of the law, such decisions shall not affect the remaining portions of this Agreement. AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 7 OF 8 Section 16. Contract Interpretation This Agreement is the result of negotiation between the parties, and shall, in the event of any dispute over the meaning or application of any portion thereof, be interpreted fairly and reasonably, and not to be more strictly construed against one party than another, regardless of which party originally drafted the section in dispute. Time is of the essence with respect to the deadlines set forth in this Agreement. Section 17. Force Majeure If a party is prevented or delayed from performing any of its obligations hereunder due to a natural or manmade event or condition not caused by such party and beyond such party's reasonable control, then such party's performance of those obligations shall be suspended until such time as the event or condition no longer prevents or delays performance. If any event or condition results in the creation of amounts of refuse in excess of ordinary amounts, then the parties shall discuss, but shall not be bound to conclude, terms and conditions for collection of those excess amounts. Section 18. Inclement Weather If the GACC cannot reasonably proceed with an event due to inclement weather, then the GACC shall reschedule the event so that it occurs in reasonably close temporal proximity to the original date scheduled for the event. A failure to so reschedule and hold the event is a material breach of this Agreement. Section 19. Assignment It is understood and agreed that GACC shall not assign, sublet, or transfer any of the rights and duties under the terms of this Agreement without the prior written approval of the EDC. Section 20. Effective Date This Agreement shall be effective upon the date first stated herein, and performance of such Agreement shall begin as soon thereafter as practicable. IN WITNESS WHEREOF, EDC and GACC have executed this Agreement. By: Sara Cox Greater Anna Chamber of Commerce Connie Stump EDC President AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 8 OF 8 Item No. 5 m City Secretary's use only City of Anna City Council Agenda Staff Report CITY bF AN NA, TEXAS Council Meeting: September 25, 2012 Staff Contact: Jessica Perkins Account Code #: n/a Budgeted Amount: n/a Exhibits: X Yes ❑ No CONSENT AGENDA SUBJECT: Consider/Discuss/Action regarding passing a resolution approving an annual sponsorship agreement between the CDC and the Greater Anna Chamber of Commerce (Jessica Perkins) SUMMARY: The EDC and CDC have historically supported the annual events of the GACC. For the past two years the Corporations have entered into a fiscal year agreement for sponsorship. The annual agreement has allowed for better planning and budgeting. The GACC hosts 5 annual events a year: Awards Banquet, Golf Tournament, July 4th Celebration, Fall Glow Fest, and the Christmas Parade. The corporations have previously funded the GACC at $15,000 per year. This year the GACC is requesting additional funds for 3 of the events: The increase is to cover cost associated with more people attending the events such as increased costs for insurance and public safety. The CDC has approved the FY 2012-2013 agreement that is attached for your review. STAFF RECOMMENDATION: Staff recommends you approve the agreement. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS APPROVING THE ANNA COMMUNITY DEVELOPMENT CORPORATIONS' 2012-2013 FISCAL YEAR SPONSORSHIP AGREEENT WITH THE GREATER ANNA CHAMBER OF COMMERCE. WHEREAS, the Anna CDC have historically supported the annual events of the GACC, and; WHEREAS, for the past few years the Anna CDC has entered into a fiscal year agreement to sponsor said events in exchange for certain promotional benefits provided by the GACC, and; WHEREAS, the annual agreements have allowed for better planning and budgeting by the Anna CDC; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Sponsorship Agreements The City Council of the City of Anna hereby approves the AGREEMENT FOR SPONSORSHIP COMMITMENT FOR THE 2012-2013 FISCAL YEAR between the CDC and the GACC attached hereto as EXHIBIT 1, incorporated herein for all purposes. PASSED AND APPROVED by the City Council of the City of Anna this 2012 APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary City Council of ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 THIS AGREEMENT FOR SPONSORSHIP COMMITMENT (this "Agreement") is made by and between the Anna Community Development Corporation ("CDC"), and the Greater Anna Chamber of Commerce, Inc. ("GACC") and entered into on this Jay of , 20 Section 1. Summary During the CDC's 2012-2013 fiscal year, the CDC hereby promises to make certain payments to the GACC to sponsor certain GACC events that GACC promises will promote the CDC and the growth and the development of the City. The amount of each payment is specified under this Agreement for each corresponding GACC event. Each payment is to be provided to the GACC prior to each event, but is contingent upon GACC providing a letter of intent to organize and hold the corresponding event and meet the corresponding benchmarks set forth herein, as well as to adequately promote the CDC and the City. Section 2. Definitions For purposes of this Agreement, the following meanings shall apply: (a) City shall mean the City of Anna, Texas. (b) CDC shall mean the Anna Community Development Corporation, a Texas nonprofit corporation. (c) GACC shall mean the Greater Anna Chamber of Commerce, Inc., a Texas nonprofit corporation. (d) Sponsor shall mean a person or corporation that pays or provides something of value to the GACC in connection with a GACC event in exchange for GACC providing promotional marketing or any other benefits associated with the GACC event. (e) Sponsorship Benefits shall mean at least that amount of sponsorship designation, advertising in print and broadcast media, marketing materials and opportunities, onsite and offsite signage and marketing, public relations benefits and all other benefits listed in this Agreement and/or otherwise available that would promote the CDC to an extent equal to or greater than any other Sponsor of the GACC event in question. In other words, Sponsorship Benefits shall provide the CDC with at least "equal billing" compared with any other Sponsor and shall provide the highest level of promotional or other benefits made available or provided to any other Sponsor, regardless of the amounts paid by the CDC as compared with other Sponsor Designation includes and shall mean: AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 1 OF 9 (1) the CDC shall be named as a Sponsor of the GACC event, that the CDC may use the same designation in all GACC-approved advertising, merchandising and promotions; and (2) the CDC shall have first right of refusal as a Sponsor of any subsequent events arising out of any of the GACC events in future years. Section 3. General Requirements 3.01 Letter of Intent The GACC agrees to provide to the CDC a letter of intent prior to each event and prior to the CDC's payment to GACC of any funds for such event. The letter of intent will be drafted on a standard form attached as "Exhibit A", and incorporated herein as if set forth in full. The letter of intent shall include a promise by the GACC to organize and hold the specific event setting forth its purpose and goals including the benchmark provisions set forth in this Agreement and shall constitute further binding contractual responsibilities of the GACC to attain those benchmarks and adequately promote the CDC. The letter of intent for any given event may set forth a different amount requested to be paid by the CDC than the amount estimated for such event as set forth in Section 4 of this Agreement. 3.02 Sponsorship Benefits The GACC agrees to furnish all materials, equipment, tools and other items necessary to provide Sponsorship Benefits to the CDC, and, in addition, all Sponsor Designations, advertising in print and broadcast media, marketing materials and opportunities, onsite and offsite signage and marketing, and all other public relations and promotional benefits as further described in this Agreement under each specific event. Advertising in print and broadcast media includes the CDC's identification as Sponsor on all print advertising secured promoting the GACC event. All such advertising shall reference the CDC as: The City of Anna Community Development Corporation. Marketing materials and opportunities, onsite signage and marketing, and public relations benefits will be provided for under each specific event in this Agreement. Section 4. GACC Events The GACC and CDC anticipate CDC sponsorship of the following events and provides specific terms of compensation, Sponsorship Benefits, goals and benchmarks to gauge promotional impact: 4.01 Glowfest 2012 Name/Purpose: Glowfest 2012, Community Fall Festival AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 2 OF 9 Date, Time, Location of Event: All Day on Saturday, October 27, 2012 at Slater Creek Park (and surrounding private property) Deadline for GACC to provide letter of intent to CDC: Monday, September 24, 2012 Estimated Compensation amount: $750tJ.00 Due Date of Payment: Monday, October 15, 2012 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: CDC Logo on pre -event banners; CDC Logo on registration form; listed as "Platinum Level" sponsor in newspaper advertisement and article Promotional Benchmark Requirements: GACC will provide approximate headcount of attendees' and geographic locations where attendees reside. 4.02 2012 Christmas Parade and Winter Wonderfest Name/Purpose: 2012 Christmas Parade and Winter Wonderfest -Community Festival and Parade Date, Time, Location of Event: All Day on Saturday, December 10, 2011, parade route Deadline for GACC to provide letter of intent to CDC: Monday, November 12, 2012 Estimated Compensation amount: $2500.00 Due Date of Payment: Monday, November 26, 2012 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: CDC Logo on pre -event banners; CDC Logo on registration forms; listed as sponsor in newspaper advertisement and article Promotional Benchmark Requirements: GACC will provide a count or list of float participation. 4.03 2013 Annual Banquet Name/Purpose: 2013 Annual Banquet -Awards and appreciation banquet as well as a promotional event for current and prospective businesses in our community. Date, Time, Location of Event: 5:00pm—11:OOpm Saturday, February 23, 2013) Longhorn Hill Party Barn in Anna, TX Deadline for GACC to provide letter of intent to CDC: Monday, January 14, 2013 Estimated Compensation amount: $500.00 AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 3 OF 9 Due Date of Payment: Monday, February 11, 2013 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: One table at the banquet; full -page advertisement placed on back of program; advertisement during event including signage and in PowerPoint presentation Promotional Benchmark Requirements 4.04 2013 Golf Tournament GACC will provide list of attendees Name/Purpose: 2013 Golf Tournament, Networking event for current GACC members as well as a promotion to prospective new members and businesses Date, Time, Location of Event: All Day on Monday, April 22, 2013, Hurricane Creek Country Club Deadline for GACC to provide letter of intent to CDC: Monday, March 18, 2013 Estimated Compensation amount: $3000.00 Due Date of Payment: Monday, April 1, 2013 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: CDC Logo on postcard distributed throughout Anna, an Alstyne, Melissa, Sherman & McKinney, Recognition as Title Sponsor in Program and on signage the day of the event, opportunity to display promotional material, signage placed on various holes Promotional Benchmark Requirements 4.05 Anna Fireworks Event GACC will provide a list of players Name/Purpose: 2013 Anna Fireworks Event, Community Festival Date, Time, Location of Event: 5:OOpm —Conclusion of Fireworks, Thursday, July 4, 2013 at Slater Creek Park and Anna ISD Football Stadium Deadline for GACC to provide letter of intent to CDC: Monday, June 3, 2013 Estimated Compensation amount: $7000:00 Due Date of Payment: Monday, June 17, 2013 Sponsorship Obligations of GACC in addition to Sponsorship Benefits: CDC Logo on pre -event banners; CDC Logo on registration form; listed as sponsor in newspaper advertisement and article AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 4 OF 9 Promotional Benchmark Requirements: GACC will provide and estimated number of attendees Section 5. Compensation In consideration of the performance of GACC's obligations under this Agreement, including the provision of Sponsorship Benefits described herein, the CDC agrees to pay the GACC the total amount of compensation of ($20,500) during the CDC's fiscal year 2012-2013, subject to the conditions set forth in this Agreement. Before the CDC shall have any obligation to make any payment to GACC with respect to any given event described in Section 4 of this Agreement, the GACC must timely provide the CDC with a letter of intent —signed by a GACC representative authorized to contractually bind the GACC—as described in Section 3.01 of this Agreement and the GACC must submit said letter of intent to the CDC before the applicable deadline for such event as set forth in Section 4 of this Agreement. The total ($20,500) amount of compensation shall be made in five separate payments with the amount of each payment being determined by the CDC by electing one of the two following options per GACC event: (1) the estimated compensation amount set forth in Section 4 of this Agreement; or (2) a different amount requested by GACC that is set forth in the letter of intent described in Section 3.01 of this Agreement and attached hereto as Exhibit A. If the CDC decides to honor any GACC request for a different amount than what is set forth in Section 4 of this Agreement, the CDC shall thereafter have discretion to alter the amount of payments it makes with respect to any remaining events so that its overall compensation paid to the Chamber under this Agreement does not exceed $15,000 during the CDC's 2012-2013 fiscal year. The GACC shall provide the CDC with a written receipt. Section 6. Licenses and Permits The GACC shall obtain and pay for any and all permits, licenses, disposal fees, or any other costs required for any of the GACC events and to fulfill this Agreement. The GACC shall take all reasonable steps necessary to ensure that all state, federal, and local permitting and licensing requirements are met at all times during all GACC events. The GACC must comply with all federal and state laws, and local ordinances while organizing and participating in the GACC events. Section 7. Independent Contractor Status/ Liability/ Indemnity It is expressly understood and agreed that the CDC has no right of control, supervision, or direction over any work performed by the GACC relating in any way to the GACC's undertaking of any of its events (the "Work"), including but not limited to its employees, agents, contractors, or its subcontractors, nor does the CDC have any control, supervision or direction of the means, methods, sequences, procedures, and techniques utilized to complete any of the Work. There shall be no joint control over the Work. The GACC agrees to fully defend, indemnify and hold harmless the AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 5 OF 9 CDC from any claim, proceeding, cause of action, judgment, penalty, or any other cost or expense arising or growing out of, associated or in connection with the Work. The indemnification includes, but is not limited to, attorney fees incurred by the CDC in defending itself or in enforcing this Agreement. By entering into this Agreement, GACC waives all rights and remedies in law or in equity except to seek enforcement of specific performance, without any right to reimbursement of costs or attorney fees, of the obligations under this Agreement. This provision is not intended to and does not waive any of the CDC's governmental immunities, including immunity from suit and liability. Section 8. Insurance GACC shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in conjunction with the performance of the Work or in any way related to the GACC's undertakings performed in connection with the GACC events, including but not limited to coverage for GACC, its agents, representatives, employees, contractors, or subcontractors. The form and limits of such insurance, together with the underwriter thereof in each case, must be acceptable to the CDC but regardless of such acceptance it shall be the responsibility of the GACC to maintain adequate insurance coverage at all times. Failure of the GACC to maintain adequate coverage shall not relieve the GACC of any contractual responsibility or obligation. Each policy shall provide that there will be no alteration or modification which reduces coverage in any way prior to 30 days written notice being given to the CDC. A copy of each policy, or at the CDC's discretion, a certificate of insurance, shall be filed with the CDC Secretary. Section 9. Default 9.01 Events of Default The occurrence, at any time during the term of the Agreement, of any one or more of the following events, shall constitute an Event of Default under this Agreement: (a) the failure of GACC to timely provide the CDC with a properly executed letter of intent in accordance with the terms of this Agreement prior to each event; (b) the failure of the GACC event to occur on the scheduled date, or —if the event cannot occur on the originally scheduled date due to inclement weather —the failure of the GACC event to be rescheduled and occur in accordance with Section 18 of this Agreement; (c) the failure of GACC to provide the CDC with all Sponsorship Benefits enumerated in this Agreement for each event; (d) the failure of GACC to meet each promotional benchmark requirement; AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 6 OF 9 (e) the failure of the CDC to pay the GACC according to the compensation terms of each event when such payment may become due; and (f) the CDC's or GACC's breach or violation of any of the material terms, covenants, representations or warranties contained herein or GACC's failure to perform any material obligation contained herein. 9.02 Uncured Events of Default Upon the occurrence of an Event of Default by CDC that can be cured by the immediate payment of money to GACC, CDC shall have 10 calendar days from receipt of written notice from GACC of an occurrence of such Event of Default to cure same before GACC may exercise any of its remedies as set forth in this Agreement. Upon the occurrence of an Event of Default by GACC that does not include the failure to abide by a deadline or to a failure described in Section 9.01(b), it shall have 10 calendar days from receipt of written notice from CDC of an occurrence of such Event of Default to cure same, or, if same cannot be effectively cured within 10 calendar days and fully and effectively provide CDC with the Sponsorship Benefits, the default may be cured by refunding CDC's entire sponsorship fee, unless such Event of Default creates or contributes to an emergency situation in which injury to persons or property reasonably appears imminent, in which case CDC is immediately entitled to exercise or seek all rights available to it at law or in equity. If with respect to any given event set forth in Section 4 of this Agreement, there is a failure of GACC to meet a deadline or a failure described in Section 9.01(b), the CDC shall be entitled to a full refund of any amounts paid by the CDC to GACC for such event. Section 10. Amendment; Termination This Agreement may not be amended except pursuant to a written instrument signed by both parties. This Agreement shall terminate once both parties shall have completed performance of their respective obligations hereunder. AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 7 OF 9 Section 11. Notice Notice as required by this Agreement shall be in writing delivered to the parties via postage prepaid, U.S. certified mail, return receipt requested, at the addresses listed below: CDC GACC CDC President Anna Community Development Corporation 101 N. Powell Parkway Anna, Texas 75409 GACC Director Greater Anna Chamber of Commerce P.O. Box 1256 Anna, Texas 75409 Each party shall notify the other in writing within 10 days of any change in the address information listed in this section. Section 12. No Waiver of Immunity Nothing in this Agreement waives any governmental immunity available to the CDC under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Section 13. Entire Agreement This Agreement represents the entire and integrated Agreement between CDC and GACC and supersedes all prior negotiations, representations and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Section 14. Governing Law and Venue This Agreement shall be governed by the laws of the State of Texas as to interpretation and performance. Any and all legal action necessary to enforce this Agreement shall be brought in a court of competent jurisdiction in Collin County, Texas or in the United States District Court for the Eastern District of Texas, Sherman Division. Section 15. Severability The provisions of this Agreement are severable. In the event that any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement shall be found to be contrary to the law, or contrary to any rule or regulation having the force and effect of the law, such decisions shall not affect the remaining portions of this Agreement. AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 8 OF 9 Section 16. Contract Interpretation This Agreement is the result of negotiation between the parties, and shall, in the event of any dispute over the meaning or application of any portion thereof, be interpreted fairly and reasonably, and not to be more strictly construed against one party than another, regardless of which party originally drafted the section in dispute. Time is of the essence with respect to the deadlines set forth in this Agreement. Section 17. Force Majeure If a party is prevented or delayed from performing any of its obligations hereunder due to a natural or manmade event or condition not caused by such party and beyond such party's reasonable control, then such party's performance of those obligations shall be suspended until such time as the event or condition no longer prevents or delays performance. If any event or condition results in the creation of amounts of refuse in excess of ordinary amounts, then the parties shall discuss, but shall not be bound to conclude, terms and conditions for collection of those excess amounts. Section 18. Inclement Weather If the GACC cannot reasonably proceed with an event due to inclement weather, then the GACC shall reschedule the event so that it occurs in reasonably close temporal proximity to the original date scheduled for the event. A failure to so reschedule and hold the event is a material breach of this Agreement. Section 19. Assignment It is understood and agreed that GACC shall not assign, sublet, or transfer any of the rights and duties under the terms of this Agreement without the prior written approval of the CDC. Section 20. Effective Date This Agreement shall be effective upon the date first stated herein, and performance of such Agreement shall begin as soon thereafter as practicable. IN WITNESS WHEREOF, CDC and GACC have executed this Agreement. By: Sara Cox Greater Anna Chamber of Commerce Jason Focht CDC President AGREEMENT FOR SPONSORSHIP COMMITMENT FOR 2012-2013 PAGE 9 OF 9 MINUTES PLANNING AND ZONING COMMISSION SPECIAL MEETING April 2, 2012 The Plamung and Zoning Conu7ussio11 of the City of Anna held its regular meeting on Monday, April 2, 2012, at 7:00 p.m., at the Community Room of the Aima City Hall Administration Building located at 111 North Powell Parkway (Hwy S), to consider the following items. 1. Call to order and establishment of quorum. The meeting was called to order at 7:01 p.nrn. by Mi•. Colombo. Members present were Louis Musmeci, Jennifer Strange, Darin Colombo, Rick Skotzke and Shane Williams. Justin Burr was absent. Staff present was Maurice Schwanke and Clark McCoy, city attorney. 2. Invocation and Pledge of Allegiance Mn•. Schwanke gave the invocation and led the Pledge of Allegiance. 3. ConsideriDisezzss/Act on recommendation regarding the �°Yougas Property" development plat. Mr. Schwanke gave a power point presentation regarding the "Yougas Property" development plat. He notated that the development plat is within Arena's ETJ and that the plat meets city requirements and is recommended for approval. A motion was made by Mr. Williatzzs to approve the "Yougas Property" development plat. Mr. Musmeci seconded the motion. The vote was unanimous. 4. (a) Public Hearing: To consider public comment on an ordinance of the city of Anna, Texas, amending the Anna City Code of Ordinances by amending Part II, Article III by adding regulations related to alcoholic beverages; by amending Part III-C, Zoning Ordinance, Section 34.12 regulating location and uses related to sale of alcoholic beverages. The Public Hearing opened at 7:07 pan. Mr. Schwanke noted that this ordinance which deals with alcohol is being brought forward for several reasons as follows: a. To incorporate the alcohol related ordinances that are separate and not codified in the Aima Code into one document; b. To incorporate count findings that are contrary to some of the provisions contained vi our codes, and c. To facilitate development within the "Downtown Redevelopment District". This amendment to the Anna Code will help when people. are researching our 4vebsi#e concerning our ordinance on how we �,vork with alcohol instead of trying to obtain all the separate ordinances that are currently in place. He also noted that the Staff is in favor of approval of this ordinance. The Public Hearing closed at 7:09 p.m. (b) Consider/Discuss/Act on recommendation regarding an ordinance ordinance of the city of Anzna, Texas, aznezulizzg the Anna City Code of Ordinances by amending Part II, Article III by adding regulations related to alcoholic beverages; by amending Part PZC Minutes 04-02-12.doc Page 1 of 2 04-02-12 III-C, Zoning Ordinance, Section 34,12 regulating location and uses related to sale of alcoholic beverages. A motion was made by Mr. Skotzke to approve the ordinance, Mr. Williams seconded the motion. The vote was unanimous. 5. (a} To consider public comment regarding all ordinance of the City of Anna, Texas, amending the Anna City Code of Ordinances, by amending Part III-C; Zoning Ordinance, Section 4 Definitions and Section 35 Supplemental District Regulations; by adding Section 35.04; a, b, and c, regarding a Waiver of Strict Compliance of masonry content or definition for regionally or nationally recognized commercial trademark architectural design of structures. The Public Hearing opened at 7:17 p.m. Mr. Sclnwanke noted that this ordinance revision allows the City Council to waive requirements of its masonry standards in instances where strict compliance may not be in the best interest of the City. There are some chain businesses that have identifying trademark architectural styles. In some instances, but not all, it may be advantageous to have a mechanism in place to accommodate these entities and allow modifications of our standards. Additionally, this ordinance tightens up our definition of masonry to not include basic CMU blocks. At a minimunn blocks must be split face. He also noted that the staff is reconnnlending approval of this ordinance until such time as the entire zoning ordinance is reviewed. (b} Consider/Diseuss/Act on an orcIinanee•of the City of Anna, Texas, amending the Anna City Code of Ordinances, by amending Part III-C; Zoning Ordinance, Section 4 Definitions and Section 35 Supplemental District Regulations; by adding Section 35.04; a, b, and c, regarding a Waiver of Strict Compliance of masonry content or definition for regionally or nationally recognized commercial trademark architectural design of structures. A motion was made by 1VIr. Williaunns to approve the ordinance. Mr. Skotzke seconded the motion. Tlne vote was unanimous. 6. Consider action to approve 1Vlintites of the Nlarch 20, 2012 special meeting. A motion was made by Mt•. Mttsmeci to approve Minutes of the Apri12, 2012 meeting. Mr. Skotzke seconded the motion. The vote was unanimous. Adjourn There being no fiuiher busutess, a motion was made Uy Iv1t•. Skotzke, seconded Uy Mr. Ivlustneci to adjourn meeting. The meeting adjotu•ned at 7:27 p.m, Maurice Schwanke Director of Planning and Devetapment ATTEST: - PZCMinutes 04-Q2-12.doc Page 2 of 2 Q4-02-12 1VI..INiJTES PLANNING AND ZONING % OMUIIISSION SPECIAL MEETING May 7, 2012 The Plannirrg and Zoning Commission of the City of Amin held its meeting on Monday, May 7, 2012, at 7:15 p.m., at the Community Room of the Anna City Hall Administration Building located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to oa•der and establishment of quorum. The meeting was called to order at 7:46 p.m. by co-chairman, Justin Burr. Members present were Justin Burr, Darrhr Colombo, Rick Skotzke and Shane Williams. Jennifer Strange and Louis Musmeci were absent. Staff present was Maurice Schwanke, Tana Ross and Kevin Anderson, City Council Liaison. 2. )<nvocafion and PIeclge of Allegiance Mr. Schwanke gave the invocation and led the Pledge of Allegiance. 3. Consider/Discuss/Act on recommendation regarding "Oncor Electric Deliveay Company" final plat. Mr•. Schwanke gave a presentation cotrcerning the "Oncor's" "final plat. Mr. Schwanke noted that the final plat has been reviewed and it should be noted that no water or wastewater facilities are required for this development. He also noted that the final corrections to the civil construction have been made and that staff is recommending approval of this plat. Mark Plousewright, representative for Oncor was present to answer questions regarding the final plat. A motion vas made by Mx. Colombo to approve the "Oneox Electric Deliveay Company" final plat. Mr•. �,Vihliams seconded the motion. The vote was unanimous. 4. (a) Public Hearing: To consider public comment regarding an ordinance amending the City's conapz•elteusive plan, zoning map and zoning ordinance and changing the zoning of certain property. Anna Economic Development Corporation, owner(s) of property, is requesting a zoning change to Planned Development (PD) zoning to provide for Downtown Redevelopment District. The property is currently zoned as Single Family Residential (SF) and is located at 312 N. Powell Pksvy. The public hearing was opened at 7:50 p.m. Mr•. SchFvaruce gave a presentation regarding the zaiung request. He noted that the old post office building has been purchased by the Anna Economic Development Corporation. The property was used as a commercial structure; liowever•, the zoning was never changed. As the city moves forward, we would like to have the zoning on the land in conformance with our Comprehensive Plan, our Downtown Revitalization Plan, and the intended use for the property. At this time the intended use is office space. The facility at this location is currently being remodeled for office use. The basic structure is not changing as well as the site plan is remaining in effect except for some ADA and sidewalk PZC Minutes 05-07-12.doc Page 1 of 2 05-07-12 improvements. A front elevation facelift is also being constructed. Mr. Sclnvanke noted that the Staff is in support of this zoning change and is recommending approval. The public hearing closed at 7;S I p.m. (b) Consider/Discuss/Act on recommendation regarding an ordinance amentling the City's Comprehensive Plan, Zoning Map and Zoning Ordinance and changing the zoning of certain property. The owner(s) is requesting a zoning change to Planned Development (PD) zoning to provide for Downtown Redevelopment Distrlet. The property is currently zoned as Single Family Residential (SF) and is located at 312 N. Powell Plkwy. A motion was made by Mr, Williams to approve the zoning request. Mr. Colombo seconded the motion. The vote was unanimous 5. Cansider action to approve Minutes of the Apri12, 2012 special meeting. A motion vas made by Mr. Skotzke to approve Minutes of the April 2, 2412 meeting. Mr. Colombo seconded the motion. The vote was unanimous. 6. Adjourn There being no further business, a motion as made by Mr. Skotzke, seconded by Mz•. Colombo to adjourn meeting. The meeting adjourned at 1:53 p.m. Director of Plannuig and Deve[opmeirt ATTEST; PZC Minutes 05-07-12.doc Page 2 of 2 05-07-12 MlivuTEs PLANNING AND ZONING COMIVIISSION SPECIAL MEETING May 21, 2012 The Planning and Zoning Com»nission of the City of Anna held "OF meeting on Monday, May 21, 2012, at 7:00 p.m., at the Community Room of the Anna City Hall Administration Building located at 1 I 1 North Powell Parkway (Hwy 5), to consider the following items. I . Call to Order. The meeting was called to order at 7:05 p.m, by co-chairman, Justin Burr. Members present were Justin Burr, Jennifer Strange, Rick Skotzke, Louis Musmeci and Shane Williams. Darrin Colombo was absent. Staff present was Maurice Schwanke and Clark McCoy, city attorney. 2. Conduct a public hearing to consider a moratorium on the erection, placement, and/or use of Windmills and Windturbines. The public hetuing tivas open at 7:07 p.m. Mr. Schwanke gave a presentation concerning the staff recommendation that time was needed to examine wind energy installation requh'ementS and standards, The public hearing closed at T07 p.m. 3. Adjourn. TM being no fittther business, the meeting adjourned at 7:0$ p.m. Matu•ice Schwanlce Director of PIant�ing and Development ATTEST; PZC Agenda (Special) 05-21-12.doc Page 1 of 1 05-21-12 ►I �1_[►1iy11Di PLANNING AND ZONING COMIVIXOMON REGULAR MEETING June 11, 2012 The Planiiing and Zoning Commission of the %Y %J Anna held its regular meeting on Monday, June 11, 2012, at 7:00 p.m., at the Community Room of the Anma City Hall Administration Building located at 111 North Powell Parkway (Hwy S), to consider the following items. 1. Call to order and establishment of quorum. The meeting was called to order at 7.30 p.m. by co-chairman, Justin Burr. Members present were Justin Burr, Je►utifer Strange, Rick Skotzke and Shane Williams. Darrui Colombo and Louis useci were absent. Staff present was Mauri Mmce Schwanke, Tana Ross and Kevin Anderson, City Council Liaison. 2. Invocation and Pledge of Allegiaxtce Nh•, Sclwanke gave the invocation and led the Pledge of Aliegiance. 3. ConsiclerlDiscusslAct an recotnntendatiot� regarding �°Milleuium Addition" final plat. Mr. Schwanke gave a presentation concet7ling the "Millenium" plat. He noted that the plat has been received concerning the property located at 205 North Powell Parkway and is the location for the Agave Azul Plaza Project recently approved by the City Council for zoning and site plan. He also noted that some nvmor comments need to be corrected prior to going to the City Council as well as Civil Construction Plans. The Staff is reconunending approval subject to the corrections being made. A tion was made by Mr. Williams to approve the "Millenium Addition" final plat. Mr. Skotzke seconded the motion. The vote was unanimous. 4. Consso] erlDiscuss/Act on recommendation regarding "West Crossing Phase 1I" preliminary plat. Mr. Schwanke gave a presentation regarding the preliminary plat. He noted that the City Engineer has several continents that need to address. The Staff is recommending approval subject to the corrections being made. Representatives were present concerning the project but did not give a presentation. A motion was made by Mr. Williams to approve the "West Crossing Please 11" preliminary plat. Mr. Skotzke seconded the motion. The vote vas unanimous. PZC Minutes 06-11-12.doc Page 1 of 3 06-11-12 5. Consider/Discuss Act on recommendation regarding the re -plat "East Fork Estates". Mr, Schwanke gave a presentation on the "East Fork Estates" submittal. A plat has been received concerning the subdividing of a 5 acre tract into 3 lots in the East Fork Estates Subdivision. It is proposed that these lots have a County approved septic system. This variance from our ordinances requires approval by the City Council. Our City Engineer has several comments that need to address. The Staff is recommending approval subject to the corrections being made. A motion was made by Mr. Skotzke to approve the "East Fork Estates:" re -plat with the conditions of the corrections be made to plat. Ms. Strange seconded the motion, The vote was unanimous. 6. (a) Public Hearing: To consider public comment regarding an ordinazxce amending the City's comprehensive plan, zoning map and zoning ordmance and changing the zoning of certain property. The owner, Julian Smith, is requesting a zoning change to Planned Development (PD) zoning to provide for Downtown Redevelopment District. The property is currently zoned as Restricted Commercial (C1) zoning and is located at 118 W Fourth (4" `) Street. The Public Hearing opened at 7: 47 p.m. Mr. Schwanke gave a presentation on the zoning request. The City has received an application for a zoning change on 0.3 Acres of land located at the northeast corner of Fourth Street and Interurban Street. This City staff has been tivorking on a Downtown Redevelopment Ordinance that implements the overall strategy developed in the Comprehensive Plan that will make development hi the Downtown more conducive for redevelopment such as reduced setbacks, reduced parking requirement and the ability to utilize public right-of4ays for public improvements. This request fits with that vision. The proposed zoning will allow uses that are appropriate for development within the Anna's "downtown" area, The proposed structure(s) for the site could contain approximately 17,800 square feet of restaurant, office, retail and apartments. No apartments are requested at this time; however, the mechanism will be in place to allow dwelling units. If apartments are requested later a Specific Use Permit (SUP) would be required. Additionally, off-streetlon-street parking improvements are anticipated and phased with this project as shown on the attached site plan. The proposed zoning is in keeping with Tuna's Comprehensive Plan and meets the goal to make the downtown more sustainable by providing places to work, live and play in close proximity. As shown on the site plan the development will utilize the existing unimproved alley for access and Phase III parking will utilize Interurban Street right-of4ay. Phase I plans have been submitted and are under review at this time and will be subject to approval by the City Council of this zoning request and site plan. The Public Hearing closed at 7:47 pan. (b) Consider/Discuss/Act on recommendation regarding an ordinance amending t}ie City's Colnpre}rensive Plan, Zoning Map and Zoning Ordinance and changing the zoning of certain property. The owner(s) is requesting a zoning change to Planned Development (PD) zoning to provide for Downtown Redevelopment District. The property is currently zoned as Restricted Commercial (Cl) zoning and is Iocated at 118 W Fourth (41h) Street. A motion was made by Mr. Skotzke to approve the zoning request. Ms. Strange seconded the motion. The vote was unanimous. PZC Minutes 06-11-12.doc Page 2 of 3 06-11-12 (c) Consider/Discuss/Act on recommendation regarding the site plait for the "Smith Building. A motion was made by Mr. Williams to approve the site plan, seconded by Mr. Skotzke. Thunanimous, e vote was unamous. 7. Consider action to approve Minutes of the follo`ving meetings; • May 7, 2012 Regular Meeting • May 21, 2012 Special Meeting A motion was made by Mr. Skotzke to approve the Minutes of the May 7and May 21S' meetings. Mr. Williams seconded the motion. The vote was unanimous. 8. Adjourn A motion vas made by Mn•, Skotzke, seconded by Ms. Strange to adjourn mee#ing. The nneeting was adjourned at 7: 51 p.m. Maurice Schwannke Director of Plaimiug and Development ATTEST. PZC Minutes 06-11-12.doc Page 3 of 3 06-11-12 MINUTES PLANNING AND ZONING COMMISSION REGULAR MEETING August 6, 2012 The Planning and Zoning Commission of the City of Anna held its regular meeting on Monday, August 6, 2012, at 7:00 p.m., at the Community Room of the Anna City Hall Administration Building located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to order anti establishment of quorum. The meeting was called to order at 7:04 p.m. by Rick Skotzke. Members present were Rick Skotzke, Jennifer Strange, Shane Williams and Dar in Colombo. Jeff Burr was absent. Staff present was Maurice Schwanke and Tana Ross. 2. Invocation and Pledge of Allegiance Mr. Scln�vanke gave tine invocation and led the Pledge of Allegiance. 3. Considec•/Discuss/Act on recommendation regarding "Richardson Adclitian" re - plat. Mr. Schwacnke gave a presentation regarding the plat. He noted that the Riclnandsoii Addition is a re -plat to move a property line 5 feet north between existing lots 1 and 2. Both lots will still meet minimum zoning requirements. He also noted that the surveyor moved the 10' utility easement and all of the easement needs to remain south of the new lot line. Some minor corrections are still needed on the plat. A motion vas made by Mi. Willians to approve the re -plat with conditions that the corrections are made before presented to Council. Mr. Colombo seconded the motion. The vote passed unanimously. Public Hearing; To consider public comments regarding an ordinance of the city of Anna, Texas, amending the Anna City Code of Ordinances by amending Part 11, Article III by adding regulations related to alcoholic beverages; by amending Part III- C, Zoning Ordinance, Section 34.12 regulating location and uses related to sale of alcoholic beverages. The Public Hearing opened at 7:10 p.m. Ml•. Schwanke noted that this ordinance was recently reviewed and approved by the Planning and Zoning Commission and City Council. After approval it came to our attention that several non -material changes that were needed were not in the adopted version of the ordinance. Since these changes are within the "Zoning Ordinance" of the Anna Code we are required to put the changes th ough the process again. The staff is recommending approval of this ordinance. The Public Hearing closed at 7:11 p.m. (b} Consider/Discuss/Act on recommendation regarding an ordinance of the city of Anna, Texas, au�entiing the Anna City Code of Ordinances by amending Part II, Article III by adding regulations related to alcoholic beverages; by amending Part PZC Minutes 08-06-12.doc Page 1 of 3 08-06-12 III-C Zoning Ordinance, Section 34.12 regulating location and uses related to sale of alcoholic beverages. A motion was made by Ms. Strange to approve the ordinance related to alcoholic beverages. Mr. Colombo seconded the motion. The vote was unanimous. S. (a) Public Healing: To consider public comments regarding an of Mauce of the city of Anna, Texas amending the Anna Code of Ordinances by amending Part III- C; Zoning Ordinance, Section 34 by adding Section 34.13 (Wind Energy Systems) amending Appendix 2 Schedule of Uses- Table 7 and 3.7.8 (Descriptions/Definitions of Uses). The Public lIearing opened at 7;14 p.nn. Mr. Schwanke noted that the City Council directed the staff to prepare an ordinance regarding the installation of Wind Energy Conservation Systems (WECS). Two ordinances have been prepared that would establish criteria for WECS in terms of location, setbacks, noise, and heights. Two different approaches are presented. One approach proposes that WECS be control by lot size where the minimum lot size is one acre while the second approach is to control the location by setbacks. He also noted that as (FYI) a Noise Level Chart has been included. Mr. Bob Oliver; owner of Amazing Solar Solutions gave a presentation regarding wind energy solutions and answered questions from the Commission. The Public Hearing closed at 739 p.nl. (b} Considel•/Discuss/Act on recommendation aegarding aII ordinance of the city of Anna, Texas, amending the Anna City Code of Ordinances by amending Part III-C; Zoning Ordinance, Section 34 by adding Section 34.13 (Wind Energy Systems) amending Appendix 2 Schedule of Uses -Table 7 and 3.7.8 (Descriptions/Definition of Uses). Fallowing a brief discussion, a motion was made by Ms. Strange to approve the ordinance option where the location is controlled by setbacks alone and no minimum lot size (Option A). Mr. Colombo seconded the motion. The vote was unanimous with the additional condition of a shroud being required around the blades for safety issues 6. DISCIISSIOII: Single Hotne Quality Nleastnres Mr. Schwanke briefed on Single Home Quality Measures. As the City grows and moves forward with housing conlshuction we want to facilitate design standards that enhance the visual image of the city. Mr. Schwanke asked for the Planning and Zonings suggestions concernin1g roof pitch, masonry construction, garages protruding, etc. No action taken. 7. Eleetiotl of Officers: • Chairman • Vice Chairman • Secretary A motion was made by Mr. Williams to table agenda this item. Ms. Strange seconded the motion. The vote was unanimous. 8. Consider action to approve iYlinutes of the June 11, 2012 regular meeting. PZC Minutes 08-06-12.doc Page 2 of 3 08-06-12 A motion was made by Mr. Williams to approve the Minutes of the June 11, 2012 meeting. Ms. Strange seconded the motion. The vote was unani mmous. 9. Adjourn A motion was made by Ms. Strange to adjourn meeting. Mi. Williams seconded the motion. The meeting adjourned at 8:04 p.m. Director of Plarming and Development ATTEST: f ZC Minutes 08-06-12.dac Page 3 of 3 08-06-12 R� Council Meeting: September 25, 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 6 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Maurice Schwanke Date Prepared: 09/19/12 Exhibits: ■Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding Resolution initiating annexation proceedings for certain properties. This property is generally located south of West White Street, East of Ferguson Parkway, and west of Slayter Creels. SUMMARY: This proposed involuntary annexation involves approximately 83.4 acres of land. The property contains 10 parcels of property with 9 single family homes. 9 of the parcels are served by a private road (Slater Creek) while one property faces Ferguson Parkway. The Resolution (if approved) would initiate or begin annexation proceedings of the area shown on the attached Exhibit. If the Resolution is adopted, the City will schedule two public hearings that will be held during the regular City Council Meetings on November 13 and November 27. During the first public hearing, Staff will present a pIan that will explain how the city will fulfill its obligation to extend frill municipal services to the properties being annexed. A final vote on the annexation would need to be scheduled for a special City Council meeting on December 18. Since the Council typically meets only once during the month of December, we would recommend that the regular December 11 Council meeting be postponed until December 18. Prior to annexing properties that are appraised for property tax purposes as land for agricultural, wildlife management use, or as timber land (as defined in Subchapter C, D, or E Chapter 23, Tax Code) the City is required to offer to make a development agreement with the landowner. Such a development agreement would: 1) guarantee the continuation of the extraterritorial (outside the city limits) status of the property for a period of time; and 2) authorize the enforcement of all regulations and planning authority of the city that do not interfere with the use of the property for agriculture, wildlife management, or timber. The City could elect to proceed with annexation of property with a qualifying tax exemption if the owner declines a development agreement offer extended by the City. Item No. 6 City Secretary's use only The Council may elect to extend the same development agreement offer to the owners of properties that do not have a qualifying tax exemption. The attached Resolution directs the City Manager offer the Development Agreement referenced in the Resolution as Exhibit B to all the property owners within the area proposed for annexation regardless of whether their property has a qualifying tax exemption. The proposed Development Agreement (if executed by the property owner & approved by the Council) would guarantee that the property would remain outside the city limits for one (1) year. At the conclusion of the one-year period, the property owner would consent to voluntary annexation in 2013. RECOMMENDED ACTION: Staff recommends approval of the attached Resolution. CITY OF ANNA, TEXAS RESOLUTION NO. (City Annexatlon of Property East of Ferguson Parkway (CR 367), South of West White Street, and West of Slayter Creek (Containing approximately 83.4 acres) A RESOLUTION ESTABLISHING THE DATES, TIMES, AND PLACES FOR PUBLIC HEARINGS FOR THE ANNEXATION OF PROPERTY AND DIRECTING THE CITY MANAGER TO OFFER ON BEHALF OF THE CITY TO MAKE A DEVELOPMENT AGREEMENT WITH THE OWNERS OF PROPERTY WITHIN THE AREA PROPOSED FOR ANNEXATION WHEREAS, in order to better protect the health, safety, and welfare of the citizens of Anna, the City Council of the City of Anna wishes to consider annexation of certain property described in Exhibit A; and WHEREAS, said territory lies adjacent or Contiguous to the present boundaries of the City of Anna, Texas; now therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA THAT Section I. The City Council of the City of Anna hereby proposes to annex the property Shown in Exhibit A. Section 2. Public hearings regarding the proposed annexation are hereby scheduled as follows: 1St Public Hearing —November 13, 2012 at 730the City Council Chambers at the Anna City Hall Administrative Building, 111 N. Powell Pkwy, Anna, TX 2nd Public Hearing —November 27, 2012 at 7:30 p.m. in the City Council Chambers at the Anna City Hall Administrative Bung, 111 N. Powell Pkwy, Anna, TX Section 3. The City Council hereby directs the City Manager to prepare a service plan that provides for the extension of full municipal services as required and appropriate for the area shown in Exhibit A. Section 4. The City Council hereby directs the City Manager offer on behalf of the City, to make the Development Agreement, attached hereto as Exhibit B, with the owners of all properties located within the area proposed for annexation, including the owners of properties that are appraised for property tax purposes as land for agricultural, wildlife management use, or as timber land (as defined in Subchapter C, D, or E Chapter 23, Tax Code). PASSED by the following vote of all members of the City Council as present on this the 25t" day of September, 2012. AYES ATTEST: City Secretary, Natha Wilkison NAYS ABSTENTIONS APPROVED: Mayor, Mike Crist I- NU MURNJU STATE OF TEXAS ) COUNTY OF COLLIN ) CHAPTER 43 TEXAS LOCAL GOVERNMENT CODE DEVELOPMENT AGREEMENT This Agreement is entered into pursuant to Sections 43.035 and/or 212.172 of the Texas Local Government Code by and between the City of Anna, Texas (the "City") and the undersigned property owner(s) (the "Owner"). The term "Owner" includes all owners of the Property. WHEREAS, the Owner owns a parcel of real property(s) (the "Property") in Collin County, Texas, commonly known as l insert short property description] ; and as shown in the attached Exhibit "A' and WHEREAS, the Owner desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, this Agreement is entered into pursuant to Sections 43.035 and/or 212.172 of the Texas Local Government Code, in order to address the desires of the Owner and the procedures of the City; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the term (defined below) of this Agreement; and WHEREAS, this Development Agreement is to be recorded in the Real Property Records of Collin County. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: Section 1. The City guarantees the continuation of the extraterritorial status of the Owner's Property, its immunity from annexation by the City, and its immunity from City property taxes, for the term of this Agreement, subject to the provisions of this Agreement. Except as provided in this Agreement, the City agrees not to annex the Property, agrees not to involuntarily institute proceedings to annex the Property, and further agrees not to include the Property in a statutory annexation plan for the Term of this Agreement. However, if the Property is annexed pursuant to the provisions of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of Texas Local Government Code. Section 2. The Owner covenants and agrees not to use the Property for any use other than for agriculture, wildlife management, and/or timber land consistent with Chapter 23 of the Texas Tax Code, except for any existing single-family residential use of the Property, without the prior written consent of the City. The Owner covenants and agrees that the Owner will not file any type of subdivision plat or related development document for the Property with Collin County or the City until the Property has been annexed into, and zoned by, the City. The Owner covenants and agrees not to construct, or allow to be constructed, any buildings on the Property that would require a building permit if the Property were in the city limits, until the Property has been annexed into, and zoned by, the City. The Owner also covenants and agrees that the City's SF-E—Single Family Residential — Large Lot District zoning requirements apply to the Property, and that the Property shall be used only for SF-E—Single Family Residential — Large Lot District zoning uses that exist on that Property at the time of the execution of this Agreement, unless otherwise provided in this Agreement. The Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect, and the Owner who signs this Agreement covenants and agrees, jointly and severably, to indemnify, hold harmless, and defend the City against any and all legal claims, by any person claiming an ownership interest in the Property who has not signed the Agreement, arising in any way from the City's reliance on this Agreement. Section 3. The Owner acknowledges that if any plat or related development document is filed in violation of this Agreement, or if the Owner commences development of the Property in violation of this Agreement, then in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section, the Owner acknowledges that this Agreement serves as an exception to Local Government Code Section 43.052, requiring a municipality to use certain statutory procedures under an annexation plan. Furthermore, the Owner hereby waives any and all vested rights and claims that they may have under Section 43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any actions Owner has taken in violation of Section 2 herein. The Owner further agrees that the Owner will not in any manner contest any annexation of the Property initiated by the City under this Section or any annexation of the Property completed by the City after the Term of this Agreement. Section 4. Pursuant to Sections 43.035(b)(1)(B) of the Texas Local Government Code, the City is authorized to enforce all of the City`s regulations and planning authority that do not materially interfere with the use of the Property for agriculture, wildlife management, or timber, in the same manner the regulations are enforced within the City's boundaries. The City states and specifically reserves its authority pursuant to Chapter 251 of the Texas Local Government Code to exercise eminent domain over property that is subject to a Chapter 43 and/or Chapter 212 development agreement. Section 5. The term of this Agreement (the "Term") is one year from the date that the City Manager's signature to this Agreement is acknowledged by a public notary. The Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed a petition for voluntary annexation before the end of the Term, for annexation of the Property to be completed on or after the end of the Term. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. In connection with annexation pursuant to this section, the Owners hereby waive any vested rights they may have under Section 43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any application, plan, plat or construction any of the owners may submit or initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 6. Property annexed pursuant to this Agreement shall be temporarily classified as SF-E Single Family Residential — Large Lot District until permanent zoning is established by the City Council pursuant to the City's Code of Ordinances, pending determination of the Property's permanent zoning in accordance with the provisions of applicable law and the City's Code of Ordinances. Section 7. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, gives written notice of this Agreement to the prospective purchaser or grantee, and shall give written notice of the sale or conveyance to the City. Furthermore, the Owner and the Owner's heirs, successor, and assigns shall give the City written notice within 14 days of any change in the agricultural exemption status of the Property. A copy of either notice required by this section shall be forwarded to the City at the following address: City of Anna Attn: City Manager 111 N. Powell Parkway Anna, Texas 75409 Section 8. This Agreement shall run with the Property and be recorded in the real property records of Collin County, Texas. Section 9. If a court of competent jurisdiction determines that any covenant of this Agreement is void or unenforceable, including the covenants regarding involuntary annexation, then the remainder of this Agreement shall remain in full force and effect. Section 10. This Agreement may be enforced by any Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. Section 11. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the properties covered herein pursuant to the terms of this Agreement. Section 12. Exclusive jurisdiction and venue for disputes arising out of or related in any way to this Agreement shall be in Collin County, Texas. Section 13. This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. Section 14. This Agreement shall survive its termination to the extent necessary for the implementation of the provisions of Sections 3, 4, and 5 herein. Entered into this day of Philip Sanders City Manager, City of Anna, Texas THE STATE OF TEXAS } COUNTY OF COLLIN } This instrument was acknowledged before me on the City Manager, City of Anna, Texas. Notary Public, State of Texas Owner 1 Printed Name: THE STATE OF TEXAS } COUNTY OF } 2012. This instrument was acknowledged before me on the _day of Owner 1. Notary Public, State of Texas Owner 2 Printed Name: THE STATE OF TEXAS } COUNTY OF } 2012, by Philip Sanders, This instrument was acknowledged before me on the _day of 2012, by Owner 2. Notary Public, State of Texas Owner 3 Printed Name: THE STATE OF TEXAS } COUNTY OF } This instrument was acknowledged before me on the _day of 2012, by Owner 3. Notary Public, State of Texas Owner 4 Printed Name: THE STATE OF TEXAS } COUNTY OF } This instrument was acknowledged before me on the _day of 2012, by Owner 4. Notary Public, State of Texas EXHIBIT "A" Item No./ City Secretary's use only City of Anna City Council Agenda CITY OF ANNA, TEXAS Council Meeting: September 25, 2012 Account Code #: Budgeted Amount: AGENDA SUBJECT: Consider/Discuss/Action regarding ordinance adopting Release Agreement related to suit styled City of Anna v. 02570-2011, in the 380th District Court of Collin County, SUMMARY: Staff Report Staff Contact: Clark McCoy Exhibits: �t Yes ❑ No Post -Judgment Settlement and City of Weston, Cause No. 380- Texas. The above -referenced case is on the agenda for closed -session discussion. RECOMMENDED ACTION: Adopt above -referenced ordinance confirming and approving a boundary contract with the city of Weston, Texas. ORDINANCE NO. AN ORDINANCE OF THE CITY OF ANNA, TEXAS, CONFIRMING AND APPROVING A BOUNDARY CONTRACT WITH THE CITY OF WESTON, TEXAS, ADJUSTING THE BOUNDARIES AND EXTRATERRITORIAL JURISDICTION OF THE CITIES AND PROVIDING FOR RELATED OBLIGATIONS OF THE CITIES; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Anna ("Anna") and the City of Weston ("Weston") (each individually referred to as "City" and collectively referred to as the "Cities") are adjacent and neighboring municipalities that currently share common and/or nearby boundaries, and are empowered by State law and the Constitution to establish their respective incorporated areas and extraterritorial jurisdiction ("ETJ" ); and WHEREAS, Anna and Weston have each agreed to release certain portions of their ETJ and/or incorporated areas to and for the benefit of the other City (hereinafter "Released Boundaries") in exchange for the mutual commitment of the other City to refrain from further litigation involving the various boundaries and ETJ of the Cities; and WHEREAS, the Cities seek to avoid conflicts and uncertainty relative to the extent and location of their respective incorporated areas and ETJ, and the potential for further litigation involving the same; and WHEREAS, the Cities each desire to approve by ordinance a Boundary Contract, attached to this ordinance as Exhibit "A" and incorporated herein by reference (hereinafter "Boundary Contract") which confirms and adjusts the respective ETJ boundaries of and between the Cities as set forth in the Boundary Contract and in its attached boundary map ("Boundary Map") which depicts both the ETJ boundaries being released by each City to the other and the ETJ boundaries being established by the Boundary Contract; and WHEREAS, each of the Cities has reviewed their respective incorporated areas and ETJ based upon their respective populations, Chapter 42 of the Texas Local Government Code, and the location of the Released Boundaries and has determined that such tracts would be better served by the municipal services of these Cities as reflected in the attached Boundary Contract; and WHEREAS, the Cities find and determine it necessary for the health, safety and welfare of their residents to confirm boundaries and make certain agreements and adjustments regarding their respective corporate boundaries and ETJ; and Ordinance No. Page 1 of 4 WHEREAS, the Boundary Contract is made under the authority granted by and pursuant to Texas Interlocal Cooperation Act, Chapter 791 of the Texas Government Code, as amended, providing for the cooperation between local governmental bodies, for governmental purposes and the Cities each agree that this Boundary Contract involves governmental functions and services under the Texas Interlocal Cooperation Act; and WHEREAS, the respective III at which this ordinance is considered are open to the public as required by law, and the public notice of the time, place and purpose of said meeting(s) was given as required by Chapter 551, Texas Government Code. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. The City Council of the City of Anna finds that the above and foregoing recitals are true and accurate and are hereby incorporated for all purposes as official findings of the City Council of the City of Anna. Section 2. The terms and conditions of the Boundary Contract, attached as Exhibit "A," are hereby approved, authorized, and accepted, which adjust the respective boundaries and ETJ of the Cities, as more specifically set forth in the Boundary Map attached and incorporated therein as Exhibit 1. The Mayor is hereby authorized and directed to execute this ordinance and execute and deliver the Boundary Contract to the City of Weston. Section 3. The City Council of the City of Anna shall take all appropriate action necessary to effectuate the terms of this ordinance and the Boundary Contract approved hereby and through the adoption of an official map ("Official Map") showing the respective boundaries and ETJ as required by Section 41.001 of the Texas Local Government Code consistent with the Boundary Map within sixty (60) days after the Effective Date of the Boundary Contract, The Official Map of the City of Anna shall be filed with the Collin County Cleric within thirty (30) days of the adoption of the City's Official Map, and a copy of this ordinance shall be filed by the City within thirty (30) days after the effective date of the Boundary Contract, in the deed records of Collin County. Section 4. All prior annexations or actions by the City of Anna in conflict with the boundary areas agreed to between the Cities as reflected in the Boundary Map are hereby rescinded, voided, and repealed according to law to the extent of such conflict. Section 5. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or unlawful, such holding shall not affect the validity of the remaining provisions of this ordinance. Section 6. This ordinance approving the Boundary Contract shall only become effective upon the adoption by ordinance of the Boundary Contract by the City of Weston. Ordinance No. Page 2 of 4 DULY PASSED, APPROVED AND ADOPTED by the City Council of the City of Anna, Texas, on this the day of , 20120 CITY OF ANNA, TEXAS APPROVED: Mike Crist, Mayor of the City of Anna, Texas ATTEST: Natha Willcison City Secretary of the City of Anna, Texas APPROVED AS TO FORM: Clark McCoy, City Attorney of the City of Anna, Texas Ordinance No. Page 3 of 4 EXHIBIT "A" Boundary Contract Ordinance No. Page 4 of 4 Boundary Contract This Boundary Contract, effective as of the date last executed hereinbelow (the 'Effective Date"), is entered into by and between the City of Anna, a home rule municipality located in Collin County, Texas ("Anna"), and the City of Weston, a general law municipality located in Collin County, Texas ("Weston") (each individually referred to as "city" or "Party" and collectively referred to as the "Cities" or "Parties"), each acting by and through their duly authorized representatives. WHEREAS, Anna and Weston are adjacent municipalities that currently have certain common or nearby boundaries and said Cities are empowered by state law and the Constitution to establish their respective incorporated areas and extraterritorial jurisdictions ("ETJs" and singularly "ETJ" ); and WHEREAS, Anna and Weston have agreed to release certain portions of their ETJs to the other; and WHEREAS, the Cities seek to avoid conflicts and uncertainty regarding the extent and location of their respective incorporated areas and ETJs, and further litigation involving the same; and WHEREAS, each of the Cities has reviewed their respective incorporated areas and ETJs, and the location of any such areas released hereunder and each City has determined that the areas released would be better served by the municipal services of each City as set forth herein; and WHEREAS, the Cities find and determine it necessary for the health, safety and welfare of their inhabitants to confirm and/or make certain adjustments regarding their respective boundaries as set forth herein; and WHEREAS, this Boundary Contract is made under the authority of the Cities operating under applicable law and as granted by and pursuant to applicable provisions in Chapter 42 of the Texas Local Government Code, as amended, providing for boundary agreements and/or Chapter 791 of the Texas Government Code, as amended, providing for the cooperation between local governmental bodies for beneficial governmental purposes; and WHEREAS, the Cities have each submitted to their respective governing bodies companion ordinances approving this Boundary Contract which, together, confirm and adjust the incorporated areas and/or ETJs of the Cities, as set forth herein and as depicted in the attached boundary map ("Boundary Map") which depicts the areas being released by each City to the other, and certain other boundaries, said Boundary Map being labeled and attached hereto as Exhibit 1 and incorporated herein by reference; NOW THEREFORE, for and in consideration for the mutual covenants and agreements contained herein, the Cities agree as follows: 1 SECTION 1 INCORPORATION OF PREMISES The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all purposes. SECTION 2 OBLIGATIONS AND AGREEMENTS OF THE CITIES 2.01 Release of ETJs. (a) Weston forever releases: (1) any portion of its ETJ and/or incorporated areas that are located within any portion of the areas marked "Area — A" or "Area — C" on the Boundary map to Anna for inclusion into Anna's ETJ (present or future), and/or Anna's incorporated area (present or future); and (2) any claims) whatsoever —present or future, known or unknown —that all or any portion of the areas marked "Area — A" or "Area — C" on the Boundary Map are within Weston's ETJ or its incorporated area. (b) Anna forever releases: (1) any portion of its ETJ and/or incorporated areas that are located within any portion of the area marked Area — B" on the Boundary map to Weston for inclusion into Weston's ETJ (present or future), and/or Weston's incorporated area (present or future); and (2) any claims) whatsoever —present or future, known or unknown —that all or any portion of the area marked "Area — B" on the Boundary Map are within Anna's ETJ or its incorporated area. 2.02 Restrictions on Incorporation, ETJ Expansion and Authority to Regulate. (a) The Cities covenant and agree that from and after the approval and execution of this Boundary Contract and adoption of the above -referenced companion ordinances by each of the respective Cities: (1) Weston shall never incorporate any area within, or expand its ETJ into, any portion of the areas marked "Area — A" or "Area — C" on the Boundary Map; and (2) Anna shall never incorporate any area within, nor expand its ETJ into, any portion of the area marked "Area — B" on the Boundary Map. (b) The Cities further understand and agree that "Area - C" on the Boundary Map accurately depicts a portion of Anna's existing incorporated area and/or ETJ as of the Effective Date of this Boundary Contract. 2 (c) Weston shall at no time assert any police powers or other governmental powers in the area(s) that Weston is releasing herein without Anna's written consent expressed by ordinance. (d) Anna shall at no time assert any police powers or other governmental powers in the area(s) that Anna is releasing herein without Weston's written consent expressed by ordinance. (e) Except as restricted under this Boundary Contract, the es may otherwise expand their respective incorporated areas and ETJs in accordance with state law. 2.03 Official Map. (a) Weston represents and warrants that the map being labeled and attached hereto as Exhibit 2 shows all of Weston's claimed incorporated area and all of Weston's ETJ as of the date that Weston's duly authorized representative executed this Agreement. (b) Anna represents and warrants that the map being labeled and attached hereto as Exhibit 3 shows all of Anna's claimed incorporated area and all of Anna's ETJ as of the date that Weston's duly authorized representative executed this Agreement. (c) Within sixty (60) days after the Effective Date, the respective governing bodies of the Cities shall take all appropriate action necessary to effectuate the terms of this Boundary Contract through the adoption of respective official maps ("Official Map") showing each City 's respective Boundaries and ETJ. The Official Map of each City shall show the boundaries of their respective incorporated areas and ETJ in a manner that does not conflict with the Boundary Map. (d) The Official Map of each City shall be filed by each City with the Collin County Clerk within thirty (30) days after adoption of that City's Official Map; and, each City shall file a copy of its ordinance adopting and authorizing the execution of this Boundary Contract within thirty (30) days after the Effective Date of this Boundary Contract, in the deed records of Collin County. (e) The failure of the Cities or either one of them to adopt an Official Map or timely file an Official Map or ordinance shall not hinder or impact the validity of this Boundary Contract or the validity of either City's incorporated areas and/or ETJs as adjusted by this Boundary Contract. 2.04 Agreed Judgment. Within thirty (30) days after the Effective Date of this Boundary Contract, the Parties shall cause to be filed a proposed agreed judgment in the lawsuit styled City of Anna, Texas v. City of Weston, Texas, Cause No. 380-02570-2011, now pending in the 380th Judicial District of Collin County, Texas ("Agreed Judgment"). Said Agreed Judgment will incorporate the essential terms of this Boundary Contract, including the Boundary Map, and the Parties agree that the terms of the Boundary Agreement will therefore be fully enforceable by the court. To the fullest extent under law, the failure for any reason of the Parties to seek said Agreed Judgment, and/or the failure of the Court to enter said Agreed Judgment shall not hinder or impact the validity of this Boundary Contract or the validity of the either City's incorporated areas and/or ETJs as adjusted by this Boundary Contract. The Parties further agree that each shall bear its own costs, attorney's fees and expenses related to the Agreed Judgment and the lawsuit identified above. 2.05 Prior Actions Repealed. The Cities covenant and agree that all prior ordinances, resolutions, annexations, agreements, or actions by the Cities or either of them in conflict with this Boundary Contract are hereby rescinded, voided, and repealed to the extent of such conflict, and the Cities relinquish any conflicting ETJ under Texas Local Government Code Section 42.023, as amended. Each City fully waives and releases any and all past and current claims of every conceivable nature against the other City and their respective City Council members, officers, officials, employees, agents, attorneys, and representatives regarding this Boundary Contract, the ordinance adopting and authorizing this Boundary Contract, any and all incorporated areas, ETJs, and annexation issues, claims, demands, controversies or causes of action between the Cities, including but not limited to any challenges involving the type of municipality of either City, and including but not limited to any claim under the Declaratory Judgment Act. 2.06 Anna City Limits. The Cities acknowledge that while the current western boundary of Anna's incorporated area is the centerline of the waterway commonly known as "East Fork Creek" or the "East Fork Trinity River." The Cities further recognize that this Boundary Agreement does not include or incorporate metes and bounds descriptions of any areas affected by this Boundary Agreement and the Parties covenant and agree to determine and establish the final and precise ETJs and boundaries of their respective incorporated areas as depicted on the Boundary Map along property lines, waterways, and public roads wherever practicable, and to use their best efforts to resolve issues relating to the fixing or setting of the exact location of the incorporated areas and ETJs, if same should become necessary, in a manner that is consistent with the Boundary Map. SECTION 3 TERM /CONSIDERATION 3.01 Term. The term of this Boundary Contract shall be permanent unless amended in accordance with the provisions of this Boundary Contract. 3.02 Consideration. The Cities covenant and agree that the mutual covenants and agreements contained herein, and the actions taken by each of the Cities in fulfilling its agreements hereunder are good and valuable consideration for this Boundary Contract. The Cities further agree that the ETJ boundary and other boundary adjustments made hereunder constitute additional good and valuable consideration and serve the valid governmental purpose of establishing and confirming municipal incorporated areas and ETJs serving to allow for more efficient and effective provision of governmental services than would otherwise be practicable. 0 SECTION 4 GENERAL PROVISIONS 4.01 Default. In the event of a claimed breach of this Boundary Contract, written notice of the breach shall be given by the other City to the allegedly breaching City, with a thirty (30)-day opportunity to cure any claimed breach. If the claimed breach is not remedied within the thirty (30)-day period, the City claiming the breach may pursue only injunctive relief, specific performance, or a suit for declaratory judgment. The Cities waive and release all other remedies, including but not limited to claims to attorney's fees and expenses related to any claim or cause arising from the claimed breach. 4.02 Additional Documents. The Cities agree to cooperate fully and in good faith to execute any and all supplementary documents and to take all actions which are reasonably necessary to give full force and effect to the basic terms of this Boundary Contract. 4.03 Relationship of Parties. The Parties understand and agree that each of the Cities performing obligations required by this Boundary Contract is acting as an independent entity and that the execution of this Boundary Contract shall not be construed as creating a joint venture or agency relationship by or between the Cities. Each Party hereto is an independent governmental entity acting pursuant to the state laws and local ordinances regulating its conduct, and by execution of this Boundary Contract, the Parties make no representations regarding the validity of the actions taken by the other Party hereto. 4.04 Third Party Beneficiaries. Nothing in this Boundary Contract shall be construed to create any right in any third party who is not a signatory to this Boundary Contract, and the Parties do not intend to create any third party beneficiaries by entering into this Boundary Contract. 4.05 Immunity. Nothing in this Boundary Contract shall be deemed a waiver of the governmental, sovereign, or official immunity afforded by law to the Cities and their officials and agents, either individually or collectively. The Parties stipulate that this Boundary Contract is not subject to the terms of Local Government Code Ch. 271, Subchapter I. 4.06 Notices. All written notices required under this Boundary Contract must be hand delivered with signature receipt or sent by certified mail (return receipt requested) addressed to the proper Party at the following addresses: City of Anna: Attention: Address: City Manager, City of Anna 111 N. Powell Parkway Anna, TX 75409 5 With a copy to City Attorney City of Weston: Attention: Address: With a copy to City Attorney Clark McCoy 2591 Dallas Parkway Suite 205 Frisco, TX 75034 Mayor, City of Weston 301 Main Street Weston, TX 75097 Bryn Meredith 6000 Western Place Suite 200 Fort Worth, TX 76107 Each Party may change the address to which notices are sent by giving the other Party ten days' written notice of the new address in the manner provided by this paragraph. 4.07 Capacity. Each of the signatories below hereby represents that this Boundary Contract has been approved by his or her City Council and that he/she has full capacity and authority to sign this Boundary Contract on behalf of his/her City. 4.08 Waiver of Breach. Forbearance or waiver of one or more instances of breach of this Boundary Contract by any Party shall not constitute a continuing forbearance or a waiver of any subsequent breach of this Boundary Contract. 4.09 Applicable Law. This Boundary Contract shall be construed under, and in accordance with the laws of the State of Texas. 4.10 Legal Construction/Severability. In case any section, article, paragraph, provision, sentence, clause, phrase or word contained in this Boundary Contract shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Boundary Contract, and this Boundary Contract shall be construed as if the invalid, illegal, or unenforceable provision had not been included in this Boundary Contract. Such holding shall not affect the validity of the remaining portions of this Boundary Contract, and the respective governing body of each of the Cities hereby declares it would have passed and approved such remaining portions of this Boundary Contract despite such invalidity, which remaining portions shall remain in full force and effect. The Parties expressly agree that if, as of the Effective Date of this Boundary Contract, any portion of the incorporated areas or ETJ of either City shown on the Boundary Map is within the incorporated areas or ETJ of any other city that is not a Party to this Boundary Contract, the remainder of the Boundary Contract shall remain in full force and effect as if such property had not been included. 4.11 No Actions Inconsistent with this Agreement. Neither Anna nor Weston shall release any portion of their incorporated areas or extraterritorial jurisdiction that is in any way inconsistent with the Boundary Contract and Boundary Map —including but not limited to release of the areas depicted as "Area — A" and/or "Area — B" and/or "Area — C" as depicted on the Boundary Map —to any city or other governmental entity that is not a party to this Boundary Contract. 4.12 Entire Agreement. This Boundary Contract constitutes the sole and entire agreement of the Cities and supersedes any prior understandings or written or oral agreements between the Cities relating to the subject matter of this Boundary Contract. No verbal agreement or conversation with any officer, agent or employee of either City before or after the execution of this Boundary Contract shall affect or modify any of the terms or obligations herein contained. 4.13 Construction. This Boundary Contract has been negotiated by the Parties and shall be deemed drafted equally by the Parties hereto. The language of all parts of this Boundary Contract shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any Party shall not apply. 4.14 Amendment. No amendment, modification, or alteration of the terms of this Boundary Contract shall be binding unless it is in writing, dated subsequent to the date of this Boundary Contract; duly approved by ordinance by the City Councils of Anna and Weston; and executed by the authorized representative of those the Cities as a modification to this Boundary Contract. However, a City may adjust its boundaries with another city without the written consent of the other Party to this Boundary Contract, if and only if the adjustment is not inconsistent with the Boundary Contract and Boundary Map. 4.15 Counterparts. This Boundary Contract may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. The remainder of this page is left blank intentionally.] 7 CITY OF ANNA, TEXAS Michael Crist, Mayor City of Anna, Texas DATE EXECUTED: ATTEST: Natha Wilkison, City Secretary City of Anna, Texas APPROVED AS TO FORM: Clark McCoy, City Attorney City of Anna, Texas CITY OF WESTON1 TEXAS Patti Harrington, Mayor City of Weston, Texas DATE EXECUTED: ATTEST: Kay Lokey, City Secretary City of Weston, Texas APPROVED AS TO FORM: Bryn Meredith, City Attorney City of Weston, Texas AHIL311 I EXHIBIT 2 EXHIBIT 3 Boundary Contract This Boundary Contract, effective as of the date last executed hereinbelow (the 'Effective Date"), is entered into by and between the City of Anna, a home rule municipality located in Collin County, Texas ("Anna"), and the City of Weston, a general law municipality located in Collin County, Texas ("Weston") (each individually referred to as "CitV" or "Party" and collectively referred to as the "Cities" or "Parties"), each acting by and through their duly authorized representatives. WHEREAS, Anna and Weston are adjacent municipalities that currently have certain common or nearby boundaries and said Cities are empowered by state law and the Constitution to establish their respective incorporated areas and extraterritorial jurisdictions ("ETJs" and singularly "ETJ"); and WHEREAS, Anna and Weston have agreed to release certain portions of their ETJs to the other; and WHEREAS, the Cities seek to avoid conflicts and uncertainty regarding the extent and location of their respective incorporated areas and ETJs, and further litigation involving the same; and WHEREAS, each of the Cities has reviewed their respective incorporated areas and ETJs, and the location of any such areas released hereunder and each City has determined that the areas released would be better served by the municipal services of each City as set forth herein; and WHEREAS, the Cities find and determine it necessary for the health, safety and welfare of their inhabitants to confirm and/or make certain adjustments regarding their respective boundaries as set forth herein; and WHEREAS, this Boundary Contract is made under the authority of the Cities operating under applicable law and as granted by and pursuant to applicable provisions in Chapter 42 of the Texas Local Government Code, as amended, providing for boundary agreements and/or Chapter 791 of the Texas Government Code, as amended, providing for the cooperation between local governmental bodies for beneficial governmental purposes; and WHEREAS, the Cities have each submitted to their respective governing bodies companion ordinances approving this Boundary Contract which, together, confirm and adjust the incorporated areas and/or ETJs of the Cities, as set forth herein and as depicted in the attached boundary map ("Boundary Map") which depicts the areas being released by each City to the other, and certain other boundaries, said Boundary Map being labeled and attached hereto as Exhibit 1 and incorporated herein by reference; NOW THEREFORE, for and in consideration for the mutual covenants and agreements contained herein, the Cities agree as follows: SECTION 1 INCORPORATION OF PREMISES The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all purposes. SECTION 2 OBLIGATIONS AND AGREEMENTS OF THE CITIES 2.01 Release of ETJs. (a) Weston forever releases: (1) any portion of its ETJ and/or incorporated areas that are located within any portion of the areas marked "Area — A" or "Area — C" on the Boundary map to Anna for inclusion into Anna's ETJ (present or future), and/or Anna's incorporated area (present or future); and (2) any claims) whatsoever —present or future, known or unknown —that all or any portion of the areas marked "Area — A" or "Area — C" on the Boundary Map are within Weston's ETJ or its incorporated area. (b) Anna forever releases: (1) any portion of its ETJ and/or incorporated areas that are located within any portion of the area marked "Area — B" on the Boundary map to Weston for inclusion into Weston's ETJ (present or future), and/or Weston's incorporated area (present or future); and (2) any claims) whatsoever —present or future, known or unknown —that all or any portion of the area marked "Area — B" on the Boundary Map are within Anna's ETJ or its incorporated area. 2.02 Restrictions on Incorporation, ETJ Expansion and Authority to Regulate. (a) The Cities covenant and agree that from and after the approval and execution of this Boundary Contract and adoption of the above -referenced companion ordinances by each of the respective Cities: (1) Weston shall never incorporate any area within, or expand its ETJ into, any portion of the areas marked "Area — A" or "Area — C" on the Boundary Map; and (2) Anna shall never incorporate any area within, nor expand its ETJ into, any portion of the area marked "Area — B" on the Boundary Map. (b) The Cities further understand and agree that "Area - C" on the Boundary Map accurately depicts a portion of Anna's existing incorporated area and/or ETJ as of the Effective Date of this Boundary Contract. 2 (c) Weston shall at no time assert any police powers or other governmental powers in the area(s) that Weston is releasing herein without Anna's written consent expressed by ordinance. (d) Anna shall at no time assert any police powers or other governmental powers in the area(s) that Anna is releasing herein without Weston's written consent expressed by ordinance. (e) Except as restricted under this Boundary Contract, the Cities may otherwise expand their respective incorporated areas and ETJs in accordance with state law. 2.03 Official Map. (a) Weston represents and warrants that the map being labeled and attached hereto as Exhibit 2 shows all of Weston's claimed incorporated area and all of Weston's ETJ as of the date that Weston's duly authorized representative executed this Agreement. (b) Anna represents and warrants that the map being labeled and attached hereto as Exhibit 3 shows all of Anna's claimed incorporated area and all of Anna's ETJ as of the date that Weston's duly authorized representative executed this Agreement. (c) Within sixty (60) days after the Effective Date, the respective governing bodies of the Cities shall take all appropriate action necessary to effectuate the terms of this Boundary Contract through the adoption of respective official maps ("Official Map") showing each City 's respective Boundaries and ETJ. The Official Map of each City shall show the boundaries of their respective incorporated areas and ETJ in a manner that does not conflict with the Boundary Map. (d) The Official Map of each City shall be filed by each City with the Collin County Clerk within thirty (30) days after adoption of that City's Official Map; and, each City shall file a copy of its ordinance adopting and authorizing the execution of this Boundary Contract within thirty (30) days after the Effective Date of this Boundary Contract, in the deed records of Collin County. (e) The failure of the Cities or either one of them to adopt an Official Map or timely file an Official Map or ordinance shall not hinder or impact the validity of this Boundary Contract or the validity of either City's incorporated areas and/or ETJs as adjusted by this Boundary Contract. 2.04 Agreed Judgment. Within thirty (30) days after the Effective Date of this Boundary Contract, the Parties shall cause to be filed a proposed agreed judgment in the lawsuit styled City of Anna, Texas v. City of Weston, Texas, Cause No. 380-02570-2011, now pending in the 380th Judicial District of Collin County, Texas ("Agreed Judgment"). Said Agreed Judgment will incorporate the essential terms of this Boundary Contract, including the Boundary Map, and the Parties agree that the terms of the Boundary Agreement will therefore be fully enforceable by the court. To the fullest extent under law, the failure for any reason of the Parties to seek said Agreed Judgment, and/or the 3 failure of the Court to enter said Agreed Judgment shall not hinder or impact the validity of this Boundary Contract or the validity of the either City's incorporated areas and/or ETJs as adjusted by this Boundary Contract. The Parties further agree that each shall bear its own costs, attorney's fees and expenses related to the Agreed Judgment and the lawsuit identified above. 2.05 Prior Actions Repealed. The Cities covenant and agree that all prior ordinances, resolutions, annexations, agreements, or actions by the Cities or either of them in conflict with this Boundary Contract are hereby rescinded, voided, and repealed to the extent of such conflict, and the Cities relinquish any conflicting ETJ under Texas Local Government Code Section 42.023, as amended. Each City fully waives and releases any and all past and current claims of every conceivable nature against the other City and their respective City Council members, officers, officials, employees, agents, attorneys, and representatives regarding this Boundary Contract, the ordinance adopting and authorizing this Boundary Contract, any and all incorporated areas, ETJs, and annexation issues, claims, demands, controversies or causes of action between the Cities, including but not limited to any challenges involving the type of municipality of either City, and including but not limited to any claim under the Declaratory Judgment Act. 2.06 Anna City Limits. The Cities acknowledge that while the current western boundary of Anna's incorporated area is the centerline of the waterway commonly known as "East Fork Creek" or the "East Fork Trinity River." The Cities further recognize that this Boundary Agreement does not include or incorporate metes and bounds descriptions of any areas affected by this Boundary Agreement and the Parties covenant and agree to determine and establish the final and precise ETJs and boundaries of their respective incorporated areas as depicted on the Boundary Map along property lines, waterways, and public roads wherever practicable, and to use their best efforts to resolve issues relating to the fixing or setting of the exact location of the incorporated areas and ETJs, if same should become necessary, in a manner that is consistent with the Boundary Map. SECTION 3 3.01 Term. The term of this Boundary Contract shall be permanent unless amended in accordance with the provisions of this Boundary Contract. 3.02 Consideration. The Cities covenant and agree that the mutual covenants and agreements contained herein, and the actions taken by each of the Cities in fulfilling its agreements hereunder are good and valuable consideration for this Boundary Contract. The Cities further agree that the ETJ boundary and other boundary adjustments made hereunder constitute additional good and valuable consideration and serve the valid governmental purpose of establishing and confirming municipal incorporated areas and ETJs serving to allow for more efficient and effective provision of governmental services than would otherwise be practicable. SECTION 4 GENERAL PROVISIONS 4.01 Default. In the event of a claimed breach of this Boundary Contract, written notice of the breach shall be given by the other City to the allegedly breaching City, with a thirty (30)-day opportunity to cure any claimed breach. If the claimed breach is not remedied within the thirty (30)-day period, the City claiming the breach may pursue only injunctive relief, specific performance, or a suit for declaratory judgment. The Cities waive and release all other remedies, including but not limited to claims to attorney's fees and expenses related to any claim or cause arising from the claimed breach. 4.02 Additional Documents. The Cities agree to cooperate fully and in good faith to execute any and all supplementary documents and to take all actions which are reasonably necessary to give full force and effect to the basic terms of this Boundary Contract. 4.03 Relationship of Parties. The Parties understand and agree that each of the Cities performing obligations required by this Boundary Contract is acting as an independent entity and that the execution of this Boundary Contract shall not be construed as creating a joint venture or agency relationship by or between the Cities. Each Party hereto is an independent governmental entity acting pursuant to the state laws and local ordinances regulating its conduct, and by execution of this Boundary Contract, the Parties make no representations regarding the validity of the actions taken by the other Party hereto. 4.04 Third Party Beneficiaries. Nothing in this Boundary Contract shall be construed to create any right in any third party who is not a signatory to this Boundary Contract, and the Parties do not intend to create any third party beneficiaries by entering into this Boundary Contract. 4.05 Immunity. Nothing in this Boundary Contract shall be deemed a waiver of the governmental, sovereign, or official immunity afforded by law to the Cities and their officials and agents, either individually or collectively. The Parties stipulate that this Boundary Contract is not subject to the terms of Local Government Code Ch. 2711 Subchapter I. 4.06 Notices. All written notices required under this Boundary Contract must be hand delivered with signature receipt or sent by certified mail (return receipt requested) addressed to the proper Party at the following addresses: City of Anna: Attention: Address: City Manager, City of Anna 111 N. Powell Parkway Anna, TX 75409 5 With a copy to City Attorney: City of Weston: Attention: Address: With a copy to City Attorney Clark McCoy 2591 Dallas Parkway Suite 205 Frisco, TX 75034 Mayor, City of Weston 301 Main Street Weston, TX 75097 Bryn Meredith 6000 Western Place Suite 200 Fort Worth, TX 76107 Each Party may change the address to which notices are sent by giving the other Party ten days' written notice of the new address in the manner provided by this paragraph. 4.07 Capacity. Each of the signatories below hereby represents that this Boundary Contract has been approved by his or her City Council and that he/she has full capacity and authority to sign this Boundary Contract on behalf of his/her City. 4.08 Waiver of Breach. Forbearance or waiver of one or more instances of breach of this Boundary Contract by any Party shall not constitute a continuing forbearance or a waiver of any subsequent breach of this Boundary Contract. 4.09 Applicable Law. This Boundary Contract shall be construed under, and in accordance with the laws of the State of Texas. 4.10 Legal Construction/Severability. In case any section, article, paragraph, provision, sentenceI clause, phrase or word contained in this Boundary Contract shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Boundary Contract, and this Boundary Contract shall be construed as if the invalid, illegal, or unenforceable provision had not been included in this Boundary Contract. Such holding shall not affect the validity of the remaining portions of this Boundary Contract, and the respective governing body of each of the Cities hereby declares it would have passed and approved such remaining portions of this Boundary Contract despite such invalidity, which remaining portions shall remain in full force and effect. The Parties expressly agree that if, as of the Effective Date of this Boundary Contract, any portion of the incorporated areas or ETJ of either City shown on the Boundary Map is within the incorporated areas or ETJ of any other city that is not a Party to this Boundary Contract, the remainder of the Boundary Contract shall remain in full force and effect as if such property had not been included. G 4.11 No Actions Inconsistent with this Agreement. Neither Anna nor Weston shall release any portion of their incorporated areas or extraterritorial jurisdiction that is in any way inconsistent with the Boundary Contract and Boundary Map —including but not limited to release of the areas depicted as "Area — A" and/or "Area — B" and/or "Area — C" as depicted on the Boundary Map —to any city or other governmental entity that is not a party to this Boundary Contract. 4.12 Entire Agreement. This Boundary Contract constitutes the sole and entire agreement of the Cities and supersedes any prior understandings or written or oral agreements between the Cities relating to the subject matter of this Boundary Contract. No verbal agreement or conversation with any officer, agent or employee of either City before or after the execution of this Boundary Contract shall affect or modify any of the terms or obligations herein contained. 4.13 Construction. This Boundary Contract has been negotiated by the Parties and shall be deemed drafted equally by the Parties hereto. The language of all parts of this Boundary Contract shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any Party shall not apply. 4.14 Amendment. No amendment, modification, or alteration of the terms of this Boundary Contract shall be binding unless it is in writing, dated subsequent to the date of this Boundary Contract; duly approved by ordinance by the City Councils of Anna and Weston; and executed by the authorized representative of those the Cities as a modification to this Boundary Contract. However, a City may adjust its boundaries with another city without the written consent of the other Party to this Boundary Contract, if and only if the adjustment is not inconsistent with the Boundary Contract and Boundary Map. 4.15 Counterparts. This Boundary Contract may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. (The remainder of this page is left blank intentionally.] 7 CITY OF ANNA, TEXAS Michael CrISt, Mayor City of Anna, Texas DATE EXECUTED: ATTEST: Natha Wilkison, City Secretary City of Anna, Texas APPROVED AS TO FORM: Clark McCoy, City Attorney City of Anna, Texas DATE EXECUTED: ATTEST: Kay Lokey, City Secretary City of Weston, Texas APPROVED AS TO FORM: Bryn Meredith, City Attorney City of Weston, Texas CITY OF WESTON, TEXAS Patti Harrington, Mayor City of Weston, Texas F� ilizilm EXHIBIT 3 Item No. 8 City Secretary's use only ■w City of Anna City Council Agenda Staff Report CITY OF ANNA, TEXAS Council Meeting: September 25, 2012 Staff Contact: Clark McCoy Account Code #: Budgeted Amount. Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding resolution adopting Post -Judgment Settlement and Release Agreement related to suit styled City of Anna v. Walmat Inc. et al., Cause No. 429-00288-2009, in the 429th District Court of Collin County, Texas. SUMMARY: The above -referenced case is on the agenda for closed -session discussion. RECOMMENDED ACTION: Adopt above -referenced resolution. CAUSE N0.429-00288-2009 CITY OF ANNA, TEXAS § Plaintiff, § IN THE DISTRICT COURT v. § WALMAT, INC.; 170 SWEETWATER § CROSSING, LP; CENTURION AMERICAN § CUSTOM HOMES, INC. d/b/a CENTURION § AMERICAN DEVELOPMENT GROUP; and § 429TH JUDICIAL DISTRICT JAMES M. BONEY, Individually, § Defendants. § v. § MGP ACQUISITIONS, LP, § Intervenor § COLLIN COUNTY, TEXAS POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT This Post -Judgment Settlement and Release Agreement is entered into between and among the City of Anna, Texas, 170 Sweetwater Crossing, L.P., Centurion American Custom Homes, Inc., and MGP Acquisitions, L.P. ARTICLE 1. DEFINITIONS 170 Sweetwater means 170 Sweetwater Crossing, LP, a Texas limited partnership. Agreement means this Post -Judgment Settlement and Release Agreement by and among the Parties. Centurion means Centurion American Custom Homes, Inc. d/b/a Centurion American Development Group, a Texas corporation. City means the City of Anna, Texas, a Texas home -rule municipality. Court means the 429t" Judicial District Court, Collin County, Texas. Derivative Claimant mean any Person or entity acting by, through, or under a Party or any of the Entities of the Parties. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 1 of 17 Developer shall have the same meaning as defined in the Facilities Agreement. Entities mean those Persons (whether now in existence or not) which are or were formerly owned or controlled, in whole or in part, directly or indirectly, by a party to this Agreement, or any Derivative Claimant, and their respective entities, employers, employees, directors, shareholders, officers, assigns, predecessors, successors, attorneys, representatives, or agents of such persons and/or entities. Facilities Agreement means that certain written instrument memorializing an agreement executed by the City and Wa1Mat, bearing instrument number 20080606000686290 as filed in the property records of Collin County, Texas on or about June 6, 2008. Judgment shall mean the Order Granting Movants' Motion for Summary Judgment, entered by the Court in the Lawsuit on or about July 16, 2012, a true and correct copy of which is attached to this Agreement as Exhibit "A" which is incorporated herein by reference. Lawsuit shall mean the above -entitled and numbered cause, as pertains to the claims made by the City and any other claims, counterclaims, interventions, or appearances made by any of the parties thereto. MGP means MGP Acquisitions, L.P., a Texas limited partnership. MGP Lots mean the one hundred four (104) single-family residential lots located within the Subdivision, and identified as BLOCK A, LOTS 26-27; BLOCK D, LOTS 9-17; BLOCK F, LOTS 35-37; AND BLOCK A, LOTS 1-20; BLOCK B, LOTS 1-7; BLOCK C, LOTS 1-7, 21- 31; BLOCK D, LOTS 1-3; BLOCK F, LOTS 8-34; and BLOCK G, LOTS 1-15. Parties means, collectively: the City, 170 Sweetwater, Centurion, and MGP, all of whom are parties to the Lawsuit. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 2 of 17 Person means any individual, partnership, association, firm, trust, estate, public or private corporation, or any other legal entity whatsoever. Renj'esefff to V" shall mean and include all of a Person's past or present principals, agents, servants, employees, attorneys, consultants, experts, partners (both general and/or limited), equity participants, officers, directors, shareholders, parent companies, subsidiaries, affiliates, predecessors, successors, assigns, family members, estates, beneficiaries, heirs, devisees, legatees, trustees, and personal representatives. Rood Cnpit�rl Irnpt•ovement Fees mean the $500 per -lot fee referenced and described in the Facilities Agreement, Section 1(c) and Section 4(a) of the Facilities Agreement. Subdivision means the real property including a total of approximately 192 platted residential lots, known as the Sweetwater Crossing development, as depicted in a final plat bearing instrument number 20051208001724030 as filed in the property records of Collin County, Texas on or about December 8, 2005 (also referred to as "Sweetwater Crossing"). Wa1Mat means Wa1Mat, Inc., a Texas corporation. ARTICLE 2. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE 2.01 The City initiated the Lawsuit in interpleader naming multiple defendants with respect to Road Capital Improvement Fees that the City had collected at the time of issuance of building permits for certain lots in the Subdivision, but to which the City claimed no interest. 2.02 Subsequent to the filing of this lawsuit and the discharge of the City, but prior to final resolution of the Lawsuit, MGP intervened and asserted its claim to the Road Capital Improvement Fees. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 3 of 17 2.03 The City was discharged from all liability in this suit by the Court, and had entered into a Full and Final Settlement and Release Agreement with WalMat, 170 Sweetwater, and Centurion, prior to MGP's intervention. 2.04 The Court has entered the Judgment, which, in part, directs that MGP is entitled to the funds in the registry of the court. 2.05 The Parties desire to avoid any dispute over any potential or alleged ambiguity(ies) in the Judgment or the interpretation thereof, and to reach an enforceable agreement as to the Parties' respective rights and obligations under the Facilities Agreement and Judgment, including but not limited to the disposition of the Road Capital Improvements Fees collected by the City and the Road Capital Improvement Fees to be collected after the Effective Date of this Agreement. 2.06 All provisions of this Agreement are contractual in nature, and not mere recitals. 2.07 The purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW THEREFORE, in consideration of the covenants and conditions herein contained, and the incorporation of the above Definitions and Recitals into this Agreement, the Parties hereto agree as follows: ARTICLE 3. REPRESENTATIONS AND WARRANTIES 3.01 170 Sweetwater, Centurion, and MGP warrant and represent that none of them have any awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge, or grievance possessed by any of them or their respective Representatives or Entities as against the City that concerns or relates in any way, directly or indirectly, to the POST-NDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 4 of 17 Lawsuit and which is: (1) not subject to and fully released by this Agreement; or (2) expressly preserved by this Agreement. 3.02 170 Sweetwater and Centurion warrant and represent that, except for the claims that they have expressly assigned to MGP relating to the MGP Lots, neither of them have assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character —which Centurion or 170 Sweetwater or their respective Representatives or Entities had or may have had prior to and including the Effective Date —as against the City. 3.03 MGP warrants and represents that it has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, judgments, or grievances of any kind or character —which it or its Representatives or Entities had or may have had prior to and including the Effective Date —as against the City. 3.04 The City warrants and represents that as of the Effective Date, it has deposited all Road Capital Improvement Fees thus far collected by the City and due to be reimbursed to the Developer under Facilities Agreement. ARTICLE 4. THE JTIDGMENT 4.01 The Parties agree that the rights and obligations of the Parties —as between and among the Parties, but not as to any Person(s) not a party to this Agreement —as relates to the Facilities Agreement and the Lawsuit shall be as stated in the Judgment, except that as to the Parties and their respective Representatives, Entities, and Derivative Claimants, the Judgment shall be deemed to have been modified as follows: (a) Last line of the first paragraph on page 1 of the Judgment: the phrase "in all respects" shall be changed to "as set forth herein"; POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 5 of 17 (b) Last line of the second paragraph on page 1 of the Judgment: immediately after the word "GRANTED" shall be added as set forth herein", (c) The paragraph numbered on page 2 of the Judgment is struck in its entirety; (d) The paragraph numbered "(3)" on page 2 of the Judgment is renumbered "(2)" and in that same paragraph the phrase "the only lots located within the Sweetwater Crossing Development which were finished -out, and, consequently, the only lots upon which `Development Fees' have been and will be collected by the Plaintiff City of Anna, Texas" is struck and after the last word of that same paragraph, but before the period, is added: "as relates to said 104 single-family lots"; (e) Second line of the last paragraph starting on page 2 of the Judgment: the phrase "associated with" shall be replaced with the phrase "associated with the above - referenced 104 single-family lots located within"; (f) Last line of the paragraph starting on page 2 and ending on page 3 of the Judgment, before the period shall be added "; provided, however, Plaintiff City of Anna shall never be required to pay the $500 Road Capital Improvement Fee more times than once per any given lot"; and (g) Throughout the entirety of the Judgment —to the extent not already struck from the Judgment in accordance with the foregoing subsections (a)—(f), the phrase "Development Fee" shall be changed to "Road Capital Improvement Fee"' and the phrase "Development Fees" shall be changed to "Road Capital Improvement Fees". 4.02 The Parties further agree that neither the Judgment, the Facilities Agreement, nor this Agreement shall be interpreted to require the City to make duplicative or redundant reimbursements of Road Capital Improvements Fees. Thus, the City has fully satisfied its POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 6 of 17 obligation to pay the Road Capital Improvement Fee under the Facilities Agreement as relates to all MGP Lots that correspond to the deposits made by the City into the OUR S registry as of the Effective Date. As relates to any MGP Lot for which the City has not yet collected the Road Capital Improvement Fee as of the Effective Date, the maximum Road Capital Improvement Fee for any such lot shall continue to be $5003 and all such fees, once collected, shall be paid by the City a single time to only one Pelson in accordance with the terms of this Agreement. 4.03 As to the Parties, the Judgment shall otherwise remain as entered by the Court on July 16, 2012. 4.04 As to any third Parties, the Judgment shall remain as originally entered by the Court on July 16, 2012, notwithstanding any providing in this Agreement. ARTICLE 5. NOTICE OF ASSIGNMENT 5.01 Notwithstanding anything to the contrary in the Judgment, the Facilities Agreement, or this Agreement, the following requirements shall apply in the event that MGP sells, assigns, transfers, or otherwise conveys any of its rights or benefits under the Judgment, the Facilities Agreement, or this Agreement: (a) within ten (10) days after the effective date of any such sale, assignment, transfer, or other conveyance, MGP must provide written notice of same to the City; (b) the notice must describe the extent to which any rights or benefits under the Facilities Agreement, the Judgment, or this Agreement have been sold, assigned, transferred, or otherwise conveyed; (c) the notice must state the name, mailing address, and telephone contact information of the Person(s) acquiring any rights or benefits as a result of any such sale, assignment, transfer or other conveyance; POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 7 of 1'7 (d) the notice must be signed by a duly authorized Person representing TO and a duly authorized Person acquiring any rights or benefits as a result of the sale, assignment, transfer or other conveyance; and (e) the instrument evidencing such sale, assignment, transfer, or other conveyance shall include a provision that conspicuously states that such sale, assignment, transfer, or other conveyance shall be deemed to be null and void if there is a failure to provide the City with notice of such sale, assignment, transfer, or other conveyance in accordance with this Section 5.01. 5.02 The failure by MGP to provide notice in compliance with Section 5.01 of this Agreement shall: (a) toll the time period within which the City would otherwise be required to make payment to any Person of collected Road Capital Improvement Fees for any of the MGP Lots, with such tolling lasting until 20 days after MGP actually provides written notice in accordance with Section 5.01(b), (c), and (d) of this Agreement; and (b) obligate MGP to fully indemnify and hold har•rnless the City and its elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys fees and other costs and expenses of litigation, which may be asserted against or incurred by the City or for which the City may be held liable, which arise from MGP's failure to timely provide written notice in accordance with Section 5.01 of this Agreement. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 8 of 17 ARTICLE 6. ADDITIONAL OBLIGATIONS AND LIMITATIONS 6.01 The City shall not oppose or otherwise interfere with MGP's pursuit of the Road Capital Improvement Fees deposited by the City into the registry of the Court as of the Effective Date; provided, however, the Parties understand and agree that the City shall not be liable —or otherwise be responsible in any manner whatsoever —for any such sums that have already been withdrawn from or otherwise released by said registry of the Court. 6.02 As between and among the Parties, the Parties agree to be solely responsible for the payment of their respective attorney fees, court costs, expert witness fees, court reporter's fees, and all other expenses incurred on said party's behalf as a result of, or in connection with, the Judgment and/or this Agreement. MGP shall bear any administrative, court expense(s), or other fees related to the release or withdraw of the funds on deposit with the registry of the Court. ARTICLE 7. RELEASE OF CLAIMS 7.01 The releases set forth in this article are in addition to and cumulative of the releases set forth in any part of this Agreement: 7.02 The City hereby frilly and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES 170 Sweetwater, Centurion, and MGP, and the City further covenants not to assert in any manner against any of such Persons, any and all actual or potential claims held by the City against any of them, and/or any suits, demands, causes of action, charges, or grievances of any kind or character whatsoever, known or unknown, accruing prior to the signing of this Agreement for or because of any matter done, omitted, or suffered to be done by any such party hereto prior to and including the Effective Date, and in any manner (whether directly or indirectly) arising from or related to the Lawsuit. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 9 of 17 7.03 170 Sweetwater, Centurion, and MGP, (collectively, "Releasing Parties"), hereby fully and finally, jointly and separately, RELEASE, ACQUIT, AND FOREVER DISCHARGE the City and its Representatives and Entities, and each of said Releasing Parties further covenants not to assert in any manner against the City or its Representatives or Entities released hereby, any and all actual or potential claims held by any of said Releasing Parties against the City, and/or any suits, demands, causes of action, charges, or grievances of any Kind or character whatsoever, known or unknown, accruing prior to the Effective Date for or because of any matter done, omitted, or suffered to be done by any such party hereto prior to and including the Effective Date, and in any manner (whether directly or indirectly) arising from or related to the Lawsuit. ARTICLE 8. DELIVERY OF NOTICE 8.01 Unless modified in a subsequent duly -authorized and signed writing from a Party changing their own delivery address and delivering said change of address in accordance with this article to all other Parties, the respective addresses for delivery of any notices, documents, or items required under this Agreement to be delivered by one party to another are as follows: If to the City: Attn: City Manager City of Anna 111 N. Powell Parkway P.O. Box 776 Anna, TX 75409 with a copy to: Attn: Clark McCoy Wolfe, Tidwell &McCoy, LLP 2591 Dallas Parkway, Suite 205 Dallas, Texas Frisco, Texas 75034 POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 10 of 17 If to Centurion, 170 Sweetwater, or MGP: Atm. Mehrdad Moayedi Centurion American Custom Homes, Inc. / 170 Sweetwater Crossing, LP 1221 N. IH 35-E Suite 200 Carrollton, TX 75006 Attn: C. Gregory Shamoun Shamoun & Norman, LLP Four Hickory Centre 1755 Wittington Place Suite 200, LB25 Dallas, Texas 75234 8.02 All deliveries required under this Agreement must be sent either by certified U.S. mail, return receipt requested or by overnight delivery by a nationally recognized overnight delivery company, and the date of delivery shall be deemed to be: (1) if mailed, three days after deposit of the item with proper postage with the United States Postal Service; or (2) if sent overnight delivery, upon actual receipt. ARTICLE 9. MEDIATION 9.01 Any and all controversies arising out of or relating to the validity, interpretation, enforceability, or performance of this Agreement shall first be submitted to non -binding mediation, except that this requirement shall become null and void if any Party seeks mediation by giving all of the other Party(ies) written notice requesting cooperation in scheduling same and the mediation does not occur within 60 days of such written request due to no fault of the Party seeking mediation. Parties. 9.02 All mediation fees and related expenses shall be borne equally amongst the POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 11 of 17 ARTICLE 10. CONFLICTS 10.01 The Parties agree that in the event of any conflict between the terms of the Judgment, and the terms of the Facilities Agreement, the terms of the Judgment shall control the rights and obligations as between the Parties and their respective Representatives, Entities and Derivative Claimants. 10.02 The Parties further agree that in the event of any conflict between the terms of this Agreement and the terms of the Judgment, the terms of this Agreement shall control the rights and obligations as between the Parties and their respective Representatives, Entities and Derivative Claimants. ARTICLE 11. MISCELLANEOUS 11.01 Express Denial of Liabilities. The City and Centurion Defendants understand and agree that by entering into this Agreement, they do not admit, expressly or impliedly, liability to the other party with any and all such liability expressly denied. 11.02 Severability. If any one or more of the provisions of this Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determineA to be invalid, unlawful, or unenforceable to airy extent at any time, the remainder of this Agreement, and the application of such provision to persons, Entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the Parties hereto regarding such provision. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 12 of 17 11.03 Entire Agreement of the Parties. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof, that notwithstanding this article or anything to the contrary in this Agreement or the Judgment, it is the intent of the City and Centurion Defendants that this Agreement only modifies the terms of the Facilities Agreement to the minimum extent necessary to effect the express terms herein providing for the disposition of past and firture Road Capital Improvements Fees, and the remainder of the provisions of the Facilities Agreement shall be unaltered by this Agreement. Otherwise, no representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Agreement, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties. This Agreement shall not be construed in favor of or against any of the Parties hereto, regardless of which party initially drafted it. This Agreement was reached through arms -length negotiations by the Parties and their respective counsel and it represents a final, mutually -agreeable compromise. To the extent that this article and Article 10 are in conflict, Article 10 shall govern. 11.04 Governing Law and Venue. This Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the Parties are performable and venue for any legal action arising out of this Agreement shall lie in Collin County, Texas. 11.05 Binding Agreement. Each of the Parties understands and agrees that by their respective execution hereof, the terms of this Agreement are binding upon them and upon all of POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 13 of 17 their respective Representatives and Entities. Each of the Parties executing this Agreement further represents and warrants to each and all of the other Parties that their execution of this Agreement evidences that they have approved of all of the terms, conditions and covenants of this Agreement. 11.06 FULL UNDERSTANDING. EACH PARTY WARRANTS THAT SUCH I7_\.�I Il•/I_`.y\ �1_\ �71111 iy_��li�I�1� 1 ��II II_\� �7 t� �l II �1e`.`7 D/e�f7.� �1 �1►� 1 �1�II II_\�I �7 �1�111I1•1 UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO I�:iDL�1�11U�Illla.`7_�i7��1�1u1�l��ll_\�1�7.��111\1e`.yD/e�fl\�hl�hl�f I>•_\�1�7111:/_\IIi.Y�Ly�7_\7111•1 HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. 11.07 Execution and Effective Date. This Agreement may be signed in counterparts, and each counterpart shall constitute an original and all of which together shall be deemed to be one and the same instrument. The Parties hereto have executed this Agreement on the dates set forth unAer their names. This Agreement shall not be effective until it has been fully executed by each of the Parties and said executed document has been delivered to the City, the date upon which the City receives the last executed signature being the "Effective Date." jSignature pages to follow this page.J POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 14 of 17 CITY OF ANNA, TEXAS By: Philip Sanders, City Manager, as authorized representative of the City of Anna, Texas Dated: 2012 BEFORE ME, the undersigned authority, on this day personally appeared PHILIP SANDERS, City Manager, on behalf of City of Anna, Texas, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Philip Sanders. I have read the foregoing instrument, and I fully understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIVEN iJNDER MY HAND AND SEAL OF OFFICE THIS THE DAY OF 2012. Notary Public —State of Texas POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 15 of 17 MGP ACQUISITIONS, L.P. By: MMM VENTURES, LLC, its general partner, By: 2M Holdings, LP, its member, By: 2M Ventures, LLC By: Mehrdad Moayedi, its managing member Dated: 2012 BEFORE ME, the undersigned authority, on this day personally appeared , on behalf of MGP ACQUISITIONS, LP, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Mehrdad Moayedi. I have read the foregoing instrument, and I frilly understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." m GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE DAY 2012. Notary Public —State of Texas POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 16 of 17 CENTURION AMERICAN CUSTOM HOMES, INC. By: Mehrdad Moayedi, its President Dated: , 2012 BEFORE ME, the undersigned authority, on this day personally appeared Mehrdad Moayedi, on behalf of Centurion American Custom Homes, Inc. d/b/a Centurion American Development Group, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Mehrdad Moayedi. I have read the foregoing instrument, and I fully understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE OF 2012. Notary Public —State of Texas 170 SWEETWATER CROSSING, LP By: 170 Sweetwater Crossing, GP, LLC By: Mehrdad Moayedi, its managing member Dated: , 2010 BEFORE ME, the undersigned authority, on this day personally appeared Mehrdad Moayedi on behalf of 170 Sweetwater Crossing, LP, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Mehrdad Moayedi. I have read the foregoing instrument, and I frilly understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." OF GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE DAY 2012. Notary Public —State of Texas POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 17 of 17 CITY OF ANIMA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED CITY OF ANNA V. WALMAT INC. ET AL., CAUSE NO. 429- 00288-20091 IN THE 429TH DISTRICT COURT OF COLLIN COUNTY, TEXAS, FILED IN THE 429TH DISTRICT COURT OF COLLIN COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER'S EXECUTION OF THE SETTLEMENT AGREEMENT; AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS AND TO TAKE OTHER ACTIONS NECESSARY TO FINALIZE THE SETTLEMENT AND RELEASE OF CLAIMS. WHEREAS, the City Council recognizes that the City denies any liability in the above - referenced lawsuit; and WHEREAS, the City Council recognizes that the parties to the settlement agreement involving the above -referenced lawsuit desire to settle all matters to avoid the inconvenience and expense of continued litigation and to buy peace; and WHEREAS, the City Council recognizes that an instrument entitled Post -Judgment Settlement and Release Agreement, has been proposed and upon the City Attorney's approval of same, the City Manager's execution of said Agreement should be authorized, ratified, and approved; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS: Section 1. Recitals Incorporated The above -stated recitals are found to be true and correct and are incorporated by reference as if stated in full. Section 2. Authorization to Execute Agreement and Other Actions to Conclude Litigation That certain instrument entitled Post -Judgment Settlement and Release Agreement ("Agreement") settling the litigation styled City of Anna v. Walmat Inc. et al., Cause No. 429-00288-2009, in the 429th District Court of Collin County, Texas, a lawsuit filed in the 429th District Court of Collin County, Texas, is hereby approved by the City Council and the City Manager's execution of the Agreement is hereby authorized, ratified, and approved, subject to approval of the Agreement by the City Attorney. The City Council City of Anna Resolution No. Page 1 of 2 further authorizes the City Manager and the City Attorney to execute any additional instruments or documents or to take any other reasonable and necessary action to accomplish the dismissal of the lawsuit. PASSED AND APPROVED by the City Council of the City of Anna, Texas this the day of , 2012. Mike Crist Mayor ATTEST: Natha Wilkison City Secretary City of Anna Resolution No. Page 2 of 2 /"flAI I$l Am SfAImP.,/i CITY OF ANNA, TEXAS, Plaintiff, v. � --=-• s i I ;; I I' WALMAT, INC., 170 SWEETWATER CROSSING LP, CENTURION AMERICAN CUSTOM HOMES, INC. d/b/a CENTURION AMERICAN DEV. GROUP, and JAMES M. BONEY, Individually, Defendants, v. MGP ACQUISITIONS, LP, Intervenor. EXHIBIT iN THE DISTRICT COURT OF COLLIN COUNTY, TEXAS 429`I' JUDICIAL DISTRICT ORDER GRANTING MOVANTS' MOTION FOR SUMMARY ,ICIDGMENT On this &day of July, 2012, came for consideration Defendants 170 Sweetwater Crossing, L.P.'s (44170 Sweetwater") and Centurion American Custom Homes, Inc.'s ('Centurion'), and Intervenor MGP` Acquisitions, LP's ("MGP") (collectively, as "Movants") evidentiary and no -evidence Motion For Summary Judgment (the "Motion") in the above -styled anA numbered cause. The Court has considered the foregoing Motion, the papers submitted in favor of and in opposition to the Motion, the pleadings on ale, the arguments of counsel, and the applicable authorities. Being so informed, the Court is of the opinion that Movants' Motion for Summary Judgment should be, and hereby is, GRANTED, in all respects. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Movants' evidentiary Motion for Summary Judgment is hereby GRANTED. lltiltti ltllf/,i/// IT IS THEREFORE ORDERED, ADJUDGED, DECREED and (1) Walmat sold and conveyed the 192 single-family I locate , within1 Sweetwater Crossing Development, City of Anna, Teas�'tbgether with al Walmat's rights to and interests in that certain Facilities ,&g eemenf the,subje the above -styled and numbered cause; '` ` ffp .:...../,. n_.5. . A ANTINO MOVANTS' MOTION FOR SUMMARY JUDGMENT PAGE 1 OF 3 • "`"etlr""• is y the of t of y (2) All rights to and interests in that certain Facilities Agreement the subject of the above -styled and numbered cause, including any "Development Fees," as defined therein, that have been or will be collected by Plaintiff City of Anna, Texas, have been assigned to the respective grantee, run with the subject property, and inure to the benefit of the respective grantee; and (3) MGP, as ultimate grantee and owner of the 104 single-family lots located within the Sweetwater Crossing Development, specifically, BLOCK A, LOTS 26-27; BLOCK D, Lors 9-17; BLOCK F, LOTS Mill BLOCK A, LOTS 1-20; BLOCK B, LOTS lil BLOCK C, LOTS 1-7, 21-31a BLOCK D, LOTS 1-3; BLOCK F, LOTS 8=34; BLOCK G, LOTS 145, the only lots located within the Sweetwater Crossing Development which were finished -out, and, consequently, the only lots upon which "Development Fees" have been and will be collected by the Plaintiff City of Anna, Texas, is alone entitled to any "Development Fees" that have been or will be collected by Plaintiff City of Anna, Texas. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that MGP is entitled to and shall recover all "Development Fee" funds which have been deposited by Plaintiff City of Anna, Texas into the registry of the Court in the above -styled and numbered cause. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Collin County IK 1n/� AWL6W''�# Gtt rYl�vti f (� ?Ci5 S/ District Clerk shall release the funds, ,previously deposited by Plaintiff City of Anna, Texas into the registry of the Court in the above -styled and numbered cause, to be payable in full to MGP Acquisitions, LP. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above -described funds shall be delivered by the Collin County District Clerk to MGP Acquisitions, LP as soon as reasonably practicable. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all "Development Fees" associated with the Sweetwater Crossing Development, City of Anna, Texas, which will be collected by the Plaintiff City of Anna, Texas, shall be tendered and made payable to MOP Acquisitions, LP, or to its assignees, at 1221 North I-35 East, Suite 200, Carrollton, Texas 75006, GRDER GRANTING MOVANTSMOTION FOR SUMMARY JUDGMENT PAGE 2 OF 3 or at different location as designated by MGP Acquisitions, LP in writing to Plaintiff City of Anna, Texas. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Intervenor MGP Acquisitions, LP shall have and recover from Defendant Wal-Mat, Inc., the total amount of FIFTY ONE THOUSAND THREE HUNDRED EIGHTY FIVE DOLLARS AND 55/100 ($51,385.55), representing the reasonable and necessary attorneys' fees and costs incurred by MGP in this matter through the date of judgment. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants Walmat, Inc, take nothing by way of any of its claims, counterclaims, or cross -claims asserted in the above -styled and numbered cause, and all such claims are hereby DISMISSED, with prejudice. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Intervenor MGP Acquisitions, LP shall have and recover against Wal-Mat, Inc. all costs, fees, and expenses, including attorneys' fees, incurred by MGP in the enforcement of this Order. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Order finally disposes of all parties and all claims in the above -styled and numbered cause, and is a final appealable judgment. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all relief requested in this case not expressly granted is DENIED. SIGNED on this day of July, 2012, STATB OF T]?XAS ) ' COUNTY OFCOLL(*I ) 1, Mdrea Stroh Thc+mps+�n '' ':rct Clrrk in end for Collin Cow do er h�.:e ha: ,t ..r •1,;1P is a true and correct c file m the District then 4�fvt� ,`'1 s� + r .a�: udseaiofsaidCotnt,G FOR SUMMARYJUDOMENT C•t�L{A�i9..'?ii `r+rrurr 1 F�i�)3 otiY+I4i�`i Council Meeting: September 25, 2012 Account Code #:_ Budgeted Amount: Item No. 9 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Exhibits: ❑Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution approving a Development Agreement between the City of Anna, and Bloomfield Homes, L.P. SUMMARY: Bloomfield Homes, L.P. is in the process of developing Phases II and III of the West Crossing subdivision. In the attached Development Agreement, Bloomfield Homes has agreed to donate 2.794 acres of land to the City for use as part of the City's parks system. In consideration, the City would agree to forgo or waive the collection of certain park development fees on lots owned by Bloomfield Homes within the city up to a maximum amount of $27,940. The City intends to use the donation of the land as part of the matching funds for a Grant from Collin County to construct a portion of the Slayter Creek Trail. RECOMMENDATION: Staff recommends approval of this resolution CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS AND BLOOMFIELD HOMES, L.P. WHEREAS, the City of Anna, Texas (the y") and BLOOMFIELD HOMES, L.P. desire to enter into a Development Agreement (the "Agreement"); and WHEREAS, the City Council of the City of Anna, Texas find that approval of the Agreement is in the best interest of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The City Council hereby approves Development Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 25t" day of September, 2012. APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary CITY OF ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 1 DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered into between the City of Anna, Texas (the "City") and BLOOMFIELD HOMES, L.P. ("Owner"). The term "Owner" includes all owners of the Property, and each of the owners of the Property are jointly and severally bound to the obligations of the "Owner" under this Agreement. WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties"; and WHEREAS, it is the Parties mutual intent that this Agreement shall govern only the subject matter specifically set forth herein and that this Agreement shall supersede any other agreement between the Parties and the City's ordinances and other regulations only to the extent that any such agreements, ordinances or regulations directly conflict with the terms of this Agreement; and WHEREAS, the Owner owns a parcel or parcels of real property (the "Property") in Collin County, Texas, which is located entirely within the corporate limits of the City of Anna and is more particularly and separately or jointly described in the attached EXHIBIT A; and, WHEREAS, the Owner desires to dedicate a portion of the Property to the City for the development of park and recreation facilities or other public use (the "Land Dedication for Public Use"); and WHEREAS, the Owner has proposed to the City that it make the Land Dedication for Public Use, which is a valuable benefit to the Owner as the Owner desires to enhance and make more attractive to prospective residential home buyers the resulting development of the Property by providing public access to open space areas; and WHEREAS, the Owner acknowledges that the City's acceptance of the Land Dedication for Public Use places a significant burden upon the City to thereafter maintain the Land Dedication for Public Use for public purposes; WHEREAS, the Owner understands and acknowledges that the City's agreement to accept the Land Dedication for Public Use is not a condition of approval of the development of the Property, nor is said acceptance an exaction or a concession demanded by the City but rather is an undertaking of Owner's voluntary design to ensure consistency, quality, and adequate infrastructure that will benefit the Owner's development of the Property; WHEREAS, the City acknowledges that the Owner will incur significant costs in the making of the Land Dedication for Public Use and that those costs will result in some public benefit; WHEREAS, the City is agreeable to the Owner's proposal to the Land Dedication for Public Use and in consideration thereof is willing to forgo collection of certain Park Fees; 1 9/6/2012 12:31 PM WHEREAS, in consideration of the Land Dedication for Public Use, the City agrees to forgo collection of certain fees to be paid in connection with the issuance of single family home building permits issued on property owned by the Owner and located within the Anna city limits; NOW, THEREFORE, in consideration %J I covenants contained herein, the Parties agree as follows: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein as if set forth in full to further describe the Parties' intent under this Agreement and said recitals constitute representations by the Owner: Section 2. Terms. Unless the context requires otherwise, and in addition to the terms defined above, the following terms and phrases used in this Agreement have the meanings set out below: Park Fees means fees charged by the City to a developer or builder for the general purpose of funding the purchase or construction of park facilities; including: 1) any applicable fees described in Part IV, Article 4, Section 6 or Part III -A, Article 4, Sections 5.03 and 5.04, of the Anna City Code of Ordinances; or 2) any similar applicable park development fee included in a facilities agreement approved by the Anna City Council. Section 3. Land Dedication for Public Use. The Owner shall donate by irrevocable deed of dedication for public use, the form and content of which is attached to this Agreement as EXHIBIT B, approximately 2.794 acres of land to the City of Anna currently intended by the City to be used for the development of park and recreation facilities (said land being as described in more detail in the attached EXHIBIT C). Owner shall duly execute and deliver a copy of said deed of dedication to the City within 30 days of the effective date of this Agreement, or, solely at the City's option, delay the execution and delivery of the deed until a later time, but in any event no later than 120 days after the effective date of this Agreement. Section 4. Park Fees. Provided that the Owner fulfills its obligations under this Agreement, the City agrees that it shall not be entitled to collect, and shall forgo collection of, the Park Fees that would normally be charged in connection with the issuance of building permits for single family homes to be constructed on lots located within the Anna city limits and owned by the Owner, but only to the extent that the total amount of Park Fees that the City forgoes under this Agreement does not exceed $27,940. Notwithstanding any provision of this Agreement, inspection fees, impact fees, and other customary fees apart from Park Fees shall remain applicable, and such fees shall be collected, under applicable ordinances and regulations. Section 6. Effective Date. The effective date of this Agreement is the date that the last of the Parties' signatures to this Agreement is fully and properly affixed to this Agreement and acknowledged by a notary public. The City's duties and obligations hereunder shall not arise unless and until the City Council has duly adopted this Agreement and the Owner has duly executed same. 2 9/6/2012 12:31 PM Section 7. THE OWNER COVENANTS AND AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL LEGAL CLAIMS, BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY WHO HAS NOT SIGNED THIS AGREEMENT AND WHICH CLAIMS (1) ARISE IN ANY WAY FROM THE CITY'S RELIANCE ON THIS AGREEMENT, AND (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE CITY SHALL HAVE NO RIGHT OF CONTROL, SUPERVISION, OR DIRECTION OVER THE DESIGN OR CONSTRUCTION OF ANY PUBLIC IMPROVEMENT, NOR THE MEANS, METHODS, SEQUENCES, PROCEDURES, AND TECHNIQUES UTILIZED TO COMPLETE THE PUBLIC IMPROVEMENTS. THERE SHALL BE NO JOINT CONTROL OVER ANY PUBLIC IMPROVEMENT OR CONSTRUCTION ACTIVITIES ASSOCIATED THEREWITH. CITY SHALL EXERCISE CUSTOMARY INSPECTION AND PERMITTING FUNCTIONS, AS REQUIRED BY CITY ORDINANCES AND REGULATIONS. Section 8. This Agreement may be enforced by the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. From and after the inspection and acceptance by the City of the .and Use Dedication for Public Use or any part thereof, such Public Improvement shall be owned by the City. The Owner's sole remedy for nonperformance by the City shall be to seek specific performance of the terms of this Agreement. This Agreement does not waive any rights or immunities otherwise existing under law unless expressly set forth herein and the Parties understand and agree that this Agreement is not one for the provision of goods or services to the City by the Owner or any other person. Section 9. Exclusive jurisdiction, forum and venue for any dispute arising out of this Agreement shall be in Collin County, Texas. Section 10. Notwithstanding any other provision of this Agreement, Owner and its successors or assigns must comply with all applicable statutes or regulations of the United States and the State of Texas, as well as any City ordinances in effect on the Effective Date and not in conflict with this Agreement, and any rules implementing such statutes or regulations. Section 11. Assignment by Owner. (a) Except as otherwise provided in this paragraph, Owner has the right (from time to time upon delivery of two weeks' prior written note to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity (an "Assignee") that is or will become an owner of any portion of the Property or that is an entity that is controlled by or under common control with Owner. Notwithstanding the foregoing, Owner shall not assign this Agreement, in whole or in part, to an Assignee if the City, after action by the City Council (which action shall be considered by the City in good faith based upon financial and performance criteria, and which action shall not be unreasonably withheld, conditioned or delayed), notifies Owner within 14 days of receipt of the written notice 3 9/6/2012 10:31 PM required by this Section 10(a) that such Assignee fails to satisfy the Citys financial and performance criteria. If the City provides such notice to Owner then the Parties, within 14 days of such notice, shall mediate the dispute. The mediator shall be mutually agreed -upon; and the cost of such mediator shall be paid equally by the Parties. The mediator's determination shall not be binding on the Parties. If a Party refuses to mediate, then the decision of the Party willing to mediate shall be binding. (b) Each assignment shall be in writing executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, Owner shall not be released until the City receives an executed copy of such assignment. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. Section 12. This Agreement is for the sole and exclusive benefit of the City and the Owner and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. Section 13. This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. Section 14. All notices, demands or other communications required or provided hereunder shall be in writing and shall be deemed to have been given on the earlier to occur of actual receipt or three (3) days after the same are deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, addressed to the parties at the addresses set forth below or at such other addresses as such parties may designate by notice to the other parties. f� 9/6/2012 12:31 PM SIGNATURES: BLOOMFIELD HOMES, L.P., A Texas limited partnership By: Bloomfield Properties, a Texas corporation By: Address: Telephone Facsimile: Email: Donald J. Dykstra, President City of Anna By: Philip Sanders, City Manager Address: 111 N. Powell Parkway its Anna, TX 75409 Attn: City Manager 1050 E. Hwy 114, Suite 210 With a copy to: Glen A. Bellinger Bellinger & DeWolf, L.L.P. 10,000 N. Central Expressway, IN WITNESS WHEREOF: STATE OF TEXAS § COUNTY OF § Suite Telephone: (972) 924-3325 With a copy to: Clark McCory Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Ste. 205 Frisco, TX 75034 Telephone: (972) 712-3530 Facsimile: (972) 712-3540 Before me, the undersigned notary public, on the day of ,2012, personally appeared Donald J. Dykstra, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as President of Bloomfield Properties, Inc., a Texas corporation, as General Partner of Bloomfield Homes, L.P., a Texas limited partnership. Notary Public, State of Texas 5 9/6l2012 12:31 PM STATE OF TEXAS § COUNTY OF § Before me, the undersigned notary public, on the day of ,2012, personally appeared Philip Sanders, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as City Manager of the City of Anna and on behalf of the City of Anna. Notary Public, State of Texas C� 9/6/2012 12:31 PM LEGAL DESCRIPTION 5044-2 WHEREAS, NICHOLAS ROSS PROPERTIES, L.L.C., a Texas limited liability company, is the owner of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; BEGINNING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 34° 14' 14", a radius of 680.00 feet and a chord of N 700 53' 37" E — 400.32 feet, an arc distance of 406.34 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 75° 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creels the following; S OS° 42' S4" E, a distance of 124.78 feet; S 170 26' S4" E, a distance of 250.00 feet; S 33° 18' S4" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04' 14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 89° 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S O1 ° 21 20 E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call — 339.90 feet) to a point on the northerly line of Willow Creels Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creels Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' S2" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N O1 ° 20' 07" W, a distance of 51.89 feet to an axle found at corner; N 22° 15' 40" W, a distance of 73.44 feet to an axle found at corner; N 40° 51' 44" W, a distance of 127.91 feet to a 3/8" iron pin found at cornea; N 30° 13' 20" W, a distance of 132.18 feet to a 3/8" iron pin found at corner; N 00° 45' 22" E, a distance o 106.37 feet; N 860 59' 46' W, a distance of 78.63 feet to the southeast corner of Tract 1, Block A of said West Crossing Phase 1, a 3/8" iron pin found at corner; THENCE, N 070 39' S1" E, along the easterly line of said Tract 1, Blocic A, a distance of 51.94 feet; THENCE, N 000 07' 09" E, continuing along the easterly line of said Tract 1, Blocic A part of the way and along the east line of Lot 4, Blocic A of said West Crossing Phase 1, a distance of 214.00 feet to a point on the south line of Honeywell Drive, a 50" ROW, a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, S 890 52' 51" E, along the said Honeywell Drive south line, a distance of 140.00 feet; THENCE, continuing along the said Honeywell Drive south line and around a tangent curve to the left having a central angle of O1° 41' 43', a radius of 845.00 feet and a chord of N 890 16' 18" E — 25.00 feet, an arc distance of 25.00 feet to a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner, THENCE, N 00° 07 09 E, along the east line of the previously mentioned Drayton Drive, a distance of 165.09 feet to the PLACE OF BEGINNING with the subject tract containing 469,338 Gross Square Feet or 10.7745 Gross Acres of Land with 53,008 + - Square feet located in the 100 Year Floodplain leaving a Net 416,330 Square Feet or 9.5576 + - Acres of Land. Bearings for this description are based on the controlling monuments found along the north line of the subject tract and the Final Plat of West Crossing Phase 1 recorded in Volume 2006, Page 22 (LRCCT). N N w a o n I 1 z _71 ;n, m N N O NO W m fn 0 ,Vx u gg F O r ,P $ rp m A C INCOV ' E 214OW ® F v t rno n °>M y N �m rnm m mm = mF u N °o °i ` M r� 88 8� Zm oom* °° i ° _ lrm ° � 1 �- NA ii m6 Iax, n 1 � — O N _ aI ,�, s � P w � .. O S0121WOE =91 3�15A�'IS IS �`F N F ' A leloc�� mO i `0 3 b �\\�5 � °3 N m m T A N Be w S�q•w NOQ m �I \� \�--- y � I O NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER, DEDICATION DEED THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF COLLINS § BLOOMFIELD HOMES, L.P., a Texas limited partnership (hereinafter called "Grantor"), as a dedication, donation and gift to the CITY OF ANNA, TEXAS, a Texas municipal corporation (hereinafter called "Grantee"), whose address is 111 N. Powell Parkway, Anna, Collin County, Texas 75049, has DEDICATED and CONVEYED, and by these presents does hereby DEDICATE and CONVEY forever unto Grantee for public use, the real property located in Collin County, Texas which is more particularly described on Exhibit A attached hereto and made a part hereof for all purposes (the "Property") subject to, however, all matters of record in the Real Property Records of Collin County, Texas (said matters being called the "Permitted Exceptions"). Subject to the restrictions set forth below, Grantor expressly retains and reserves (i) a nonexclusive right of ingress, egress, and access on, over, across, to and from the Property, (ii) a nonexclusive right to install, construct, operate, replace, improve, alter, remove and perpetually maintain water, wastewater, or sanitary sewer utility improvements necessary or appropriate for the development and/or use of the real property (the "Adjacent Property") located adjacent to the Property and currently owned by Grantor as more particularly described and/or depicted on Exhibit B attached hereto and incorporated herein by reference, said utility improvements including only sanitary sewer lines, storm sewer lines, water lines, and related improvements necessary for said lines, and (iii) all rights to drain water from the surface of the Adjacent Property onto, over and across the Property. Without limiting the foregoing, Grantor hereby additionally retains and reserves a temporary construction easement over such portions of the Property as is reasonably necessary or appropriate to enable Grantor to install, construct, operate, replace, improve, alter, remove and perpetually maintain any improvements described above, and to perform any other work reasonably required in connection therewith. The rights, easements and interests retained and reserved herein (collectively hereinafter referenced as the "Rights Reserved") shall burden the Property, Grantee and Grantee's successors and assigns, and shall benefit the Adjacent Property, Grantor and Grantor's successors and assigns; provided, however, that Grantor and Grantor's successors and assigns, with respect to the Rights Reserved, shall: (1) comply with all applicable laws, ordinances and regulations, including but not limited to all applicable regulatory, environmental and safety requirements at Grantor's sole cost and expense; (2) not materially interfere with the use by and operation and activities of Grantee on the Property, and Grantor shall use such routes and follow such procedures on the Property as result in the least damage and inconvenience to Grantee; and (3) promptly repair and restore to its original condition any of the Property, including, but not limited to playgrounds, roads, trails, 1 utilities, buildings, fences, fixtures, equipment, and any other property that may be altered, damaged or destroyed in connection with the exercise of the Rights Reserved by Grantor. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns FOREVER, subject to the Permitted Exceptions, Grantor does hereby bind itself and its successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property into Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through or under Grantor, but not otherwise. Grantee hereby assumes and agrees to pay when due all ad valorem property taxes and assessments for the year 2012 and subsequent years. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] Executed as of , 2012. GRANTOR: BLOOMFIELD HOMES, L.P., a Texas limited partnership By: Bloomfield Properties, Inc., a Texas corporation, its general partner Donald J. Dykstra, President THE STATE OF TEXAS § COUNTY OF § Before me the undersigned, on this day personally appeared Donald J. Dykstra, President of Bloomfield Properties, Inc., a Texas corporation, general partner of Bloomfield Homes, L.P., a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. SEAL Given under my hand and seal of office this day of Notary Public in and for the State of Texas 2012. somplullm LEGAL DESCRIPTION OF THE PROPERTY [See attached] ExxISIT Is LEGAL DESCRIPTION AND/OR DEPICTION OF THE ADJACENT PROPERTY [See attached] EXHIBIT C LEGAL DESCRIPTION 5044-2 BEING part of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; COMMENCING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 22° 02' 40", a radius of 680.00 feet and a chord of N 760 59' 20" E — 260.03 feet, an arc distance of 261.64 feet to the PLACE OF BEGINNING; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 12° 11 30, a radius of 680.00 feet and a chord of N 590 52' 10" E — 144.42 feet, an arc distance of 144.69 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 75° 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet, THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creels the following; S OS° 42' 54" E, a distance of 124.78 feet; S 17° 26' 54" E, a distance of 250.00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 390 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04' 14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE,W, along a south line of said Nicholas Ross Properties, Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S O1° 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call = 339.90 feet) to a point on the northerly line of Willow Creek Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' S2" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N O1 ° 20' 07" W, a distance of 51.89 feet to an axle found at corner; THENCE, N 48° 25' 30" E, a distance of 148.13 feet; THENCE, along anon -tangent curve to the left having a central angle of 95° 16' 40" a radius of 50.00 feet, and a chord of N 88° 12 S0" W-73.89 feet, an arc distance of 83.15 feet; THENCE, S 45° 51' 10" E, a distance of 20.00 feet; THENCE, N 88° 41' 24" E, a distance of 101.06 feet; THENCE, N O1° 18' 36" W, a distance of 536.00 feet; THENCE, N 020 57' 28" E, a distance of 67.19 feet; THENCE, N 090 47' S6" W, a distance of 67.74 feet; THENCE, S 88° 41' 24" W, a distance of 105.00 feet; THENCE, N 010 18' 36" W, a distance of 35.70 feet; THENCE, along a tangent curve to the left having a central angle of 19° 51 56" a radius of 275.00 feet, and a chord of N 11 ° 14' 34" W-94.87 feet, an arc distance of 94.87 feet to the PLACE OF BEGINNING and containing 121,708 square feet or 2.794 acres of land. LM O EXHIBIT A LEGAL DESCRIPTION 5044-2 BEING part of a tract %J land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Cleric File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; COMMENCING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 22° 02' 40", a radius of 680.00 feet and a chord of N 760 59' 20" E — 260.03 feet, an arc distance of 261.64 feet to the PLACE OF BEGINNING; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 12° 11 30, a radius of 680.00 feet and a chord of N 590 52' 10" E — 144.42 feet, an arc distance of 144.69 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 750 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., the westerly line of a tract of land conveyed to Meltex, Inc. according recorded in Volume 2929, page 325 (LRCCT) and along the approximate Slater Creels the following; S OS° 42' S4" E, a distance of 124.78 feet; S 170 26' 54" E, a distance of 250.00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 390 26' 54" E, a distance of 113.00 feet; S 020 59' 06" W, a distance of 69.26 feet; Tract B and to the deed centerline of S 56° 04 14 W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 89° 55' S3" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S O1° 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call — 339.90 feet) to a point on the northerly line of Willow Creels Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' S2" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N O1 ° 20' 07" W, a distance of 51.89 feet to an axle found at corner; THENCE, N 48° 25' 30" E, a distance of 148.13 feet; THENCE, along anon -tangent curve to the left having a central angle of 95° 16' 40" a radius of 50.00 feet, and a chord of N 88° 12 S0" W-73.89 feet, an arc distance of 83.15 feet; THENCE, S 450 51' 10" E, a distance of 20.00 feet; THENCE, N 88° Al 24" E, a distance of 101.06 feet; THENCE, N O1° 18' 36" W, a distance of 536.00 feet; THENCE, N 020 57' 28" E, a distance of 67.19 feet; THENCE, N 090 47' 56" W, a distance of 67.74 feet; THENCE, S 880 41' 24" W, a distance of 105.00 feet; THENCE, N O10 18' 36" W, a distance of 35.70 feet; THENCE, along a tangent curve to the left having a central angle of 19° 51 S6" a radius of 275.00 feet, and a chord of N 11 ° 14' 34" W-94.87 feet, an arc distance of 94.87 feet to the PLACE OF BEGINNING and containing 121,708 square feet or 2.794 acres of land. n I z I I ra N m o EE m 0 TEA A A s O m �� i N z Ncov 'E 214QY ® E v a n �n ts, ; m � zT x ao °m a "tom tim m mm = og FR?F�[[ i v "' y m rom� �tF� N $ M888`L Zo I'OI m w o Z7{9 N No /Imor'f O/ IA02 m m � Imp I b pp� yypp' p N 025728' E Ya �2 wo ----� F � I O IA . LEGAL DESCRIPTION 5044-2 WHEREAS, NICHOLAS ROSS PROPERTIES, L.L.C., a Texas limited liability company, is the owner of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; BEGINNING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around anon -tangent curve to the left having a central angle of 34° 14' 14", a radius of 680.00 feet and a chord of N 700 53' 37" E — 400.32 feet, an arc distance of 406.34 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 75° 24' 47" E, along a southerly line of said Tract 2, Blocic A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creels the following; S OS° 42' S4" E, a distance of 124.78 feet; S 170 26' S4" E, a distance of 250.00 feet; S 330 18' S4" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04' 14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 890 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S Ol° 21 20 E, along a west line of said William Bentley Powell Tact and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call — 339.90 feet) to a point on the northerly line of Willow Creels Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' S2" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N O1° 20' 07" W, a distance of 51.89 feet to an axle found at corner; N 22° 15' 40" W, a distance of 73.44 feet to an axle found at corner; N 40° 51' 44" W, a distance of 127.91 feet to a 3/8" iron pin found at corner; N 30° 13' 20" W, a distance of 132.18 feet to a 3/8" iron pin found at corner; N 00° 45' 22" E, a distance o 106.37 feet; N 860 59' 46' W, a distance of 78.63 feet to the southeast corner of Tract 1, Blocic A of said West Crossing Phase 1, a 3/8" iron pin found at corner; THENCE, N 070 39' S1" E, along the easterly line of said Tract 1, Blocic A, a distance of 51.94 feet; THENCE, N 000 07' 09" E, continuing along the easterly line of said Tract 1, Blocic A part of the way and along the east line of Lot 4, Blocic A of said West Crossing Phase 1, a distance of 214.00 feet to a point on the south line of Honeywell Drive, a 50" ROW, a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, S 890 52' 51" E, along the said Honeywell Drive south line, a distance of 140.00 feet; THENCE, continuing along the said Honeywell Drive south line and around a tangent curve to the left having a central angle of O1 ° 41' 43', a radius of 845.00 feet and a chord of N 890 16' 18" E — 25.00 feet, an arc distance of 25.00 feet to a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, N 00° 07 09 E, along the east line of the previously mentioned Drayton Drive, a distance of 165.09 feet to the PLACE OF BEGINNING with the subject tract containing 469,338 Gross Square Feet or 10.7745 Gross Acres of Land with 53,008 + Square feet located in the 100 Year Floodplain leaving a Net 416,330 Square Feet or 9.5576 + - Acres of Land. Bearings for this description are based on the controlling monuments found along the north line of the subject tract and the Final Plat of West Crossing Phase 1 recorded in Volume 2006, Page 22 (LRCCT). N m N = w a o N � N W 6g r w 6g= s r C a O m $ N CODE MAY Q m om 2 O v Oi NO (Dj m �Dm D N rn a mm �t P 3F > Nmx m D ro o1 N m m gni so 11 J 2 Z wwww , A J O N1111� m m o w I?, {{ b N W w S 01?7iCE 2 r o D � Np� m�z �nr Ay{ m O m r m m _ A I° A m U NN F _ _ Z v D O T—Z_T m 03 _ A ym m5 48 Zm ("mm l Z O Ox* I 'E ®/ I ISO mn oAo O 00 Iwm� om� r n X{OUR} TiOME7`OW N Council Meeting: September 25, 2012 Account Code #: 50-631-6941 Budgeted Amount: $2 100 000 Item No. 10 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution awarding a bid and approving a contract for the Slayter Creek Park, Phase II Project. SUMMARY: Last fall the City was awarded a grant from the Texas Department of Parks and Wildlife to help fund the construction of Slayter Creels Park, Phase II. Last month the city solicited bids for the portion of project that includes the construction of two ball fields, one multi -purpose field, paved parking areas, and irrigation of common areas. Bids were opened on September 13 where a total of nine bids were received as shown on the attached Bid Summary sheet. The low bid was submitted by Parkscape Construction Inc. in the amount of $15190,713.10. This bid is about $275K higher than budget estimate for this phase of the park construction. We have negotiated a change order with Parkscape that will reduce Lite contract price by about $172K. In addition, we will not authorize the purchase and installation of the multi -purpose field lighting ($126,000) unless we can verify that we will have enough funds in the project budget to construct all of the other required park elements. RECOMMENDATION: The city's consulting engineer on this project has checked references provided in the bid, and has found that Parkscape Construction Inc. has a record of satisfactorily completing projects similar to this project; and they appear to have the necessary equipment and appropriate financial means to properly pursue this work. Staff recommends approval of the attached Resolution which awards the construction contract to the lowest responsible bidder Parkscape Construction Inc.. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A CONTRACT WITH PARKSCAPE CONSTRUCTION INC. FOR THE SLAYTER CREEK PARK, PHASE 11 PROJECT. WHEREAS, the City of Anna, Texas (the City) has received a grant from the Texas Department of Parks and Wildlife to help fund the construction of Slayter Creek Park, Phase II (the "Project"); and, WHEREAS, the City Council of the of the City of Anna, Texas (the City Council) authorized the Staff to solicit competitive bids for the Project; and, WHEREAS, the City, having solicited competitive bids in accordance with State law, opened said bids on September 13, 2012; and, WHEREAS, Parkscape Construction Inc. is the apparent low bidder having submitted a bid of $1,1901713.10; and, WHEREAS, the City Council desires to award the Project bid to and execute a contract with Parkscape Construction Inc. for construction of the Project; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANIMA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval and Authorization of Contract. The City Council hereby approves the Contract attached hereto as Exhibit 1 for the Slayter Creek Park, Phase II Project, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Contract. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 25th day of September 2012. ATTEST: APPROVED: Natha Wilkison, City Secretary Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 CITY OF ANNA, TEXAS BID, SPECIFICATION, AND CONTRACT DOCUMENTS FOR: SLAYTER CREEK PARK PHASE II IMPROVEMENTS TABLE OF CONTENTS INVITATIONTO BID...........................................................................................................................1 NOTICETO BIDDERS.......................................................................................................................2 Section1. BIDS.................................................................................................................................o2 Section 2. CONTRACT DOCUMENTS: Section 3. PLANS FOR USE BY BIDDER: Section 4. TIME AND ORDER FOR COMPLETION: Section 5. TWO-YEAR MAINTENANCE BOND: 0 6 a a a 0 a a 0 0 a a 0 a a 1 0 0 a a 0 a a 0 0 a a 0 & 6 a a 0 a 0 0 F p a v a 0 a a 1 0 0 a 0 9 0 0 0 0 a a 6 a b 0 a I a 0 a a 0 a a 0 a 0 amass 3 Section 6. PLANS FOR THE CONTRACTOR: Section 7. PREPARATION OF PROPOSAL: Section 8. BID SECURITY: 4 Section 9. LIQUIDATED DAMAGES FOR FAILURE TO ENTER INTO CONTRACT .......................4 Section 10. TIME OF COMPLETION AND LIQUIDATED DAMAGES...............................................4 Section 11. PERFORMANCE AND PAYMENT BONDS: Section 12. BIDDER'S KNOWLEDGE OF CONDITIONS: Section 13. INTERPRETATION OF DOCUMENT: Section 14. AWARD OF CONTRACT: 5 Section 15. PROTECTION OF THE PUBLIC: Section 16. AFFIDAVIT AGAINST PROHIBITED ACTS. Section17. ENGINEER:. I a 0 a 0 2 a 6 6 a a a & A a & 0 a a 0 a 0 0 a a a 0 0 a a a 0 0 a 0 0 0 & & a a 0 a 4 a a a a a a a 1 0 0 a a a I a a a gas Do** go $a go a a go at 0 0 to at 0 a a ass* Sam* go 0 0 met am 0 0 a go 0 0 so 6 Section 18, AMERICAN DISABILITIES ACT: Section 19. MISCELLANEOUS.........................................................................................................6 QUALIFICATION STATEMENT OF BIDDERS...................................................................................9 QUALIFICATION STATEMENT OF BIDDER'S SURETY................................................................12 PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA, TEXAS...................13 VENDORS COMPLIANCE TO STATE LAW....................................................................................15 CONFLICT OF INTEREST QUESTIONNAIRE................................................................................17 AFFIDAVIT AGAINST PROHIBITED ACTS.....................................................................................19 PROPOSALAND BID FORM...........................................................................................................21 REQUEST FOR CERTIFICATE OF EXEMPTION FROM TEXAS LIMITED SALES, EXCISE AND USETAX...........................................................................................................................................28 CONTRACTAGREEMENT..............................................................................................................29 Section 1. DOCUMENTS INCORPORATED BY REFERENCE......................................................29 Section 2. REPRESENTATIONS OF THE CONTRACTOR............................................................30 Section 3. INTENT AND INTERPRETATION..................................................................................30 Section 4. CONTRACTOR'S PERFORMANCE...............................................................................31 Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS............................................32 Section 6. FIXED PRICE AND CONTRACT PAYMENTS...............................................................34 Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY.........................................36 Section 8. CEASE AND DESIST ORDER/OWNER'S RIGHT TO PERFORM WORK....................37 Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES ........................37 Section10. INDEMNITY..................................................................................................................41 Section 11. CLAIMS BY THE CONTRACTOR................................................................................41 Section12. SUBCONTRACTORS....................................................................................................42 Section13, CHANGE ORDERS. 0 a a a 0 a a a 0 0 a a a a a & A 4 a a a 0 a I a a a 0 0 a 0 0 0 a a a 0 a b 1 0 4 a a 0 a 0 a a 0 0 a 0 0 a a a 0 & 6 6 a & a a 4 0 a a a a a a a 9 a a 0 9 a a a a 1 0 0 a a a a a a a 0 a 4 2 Section 14, DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK............45 Section 15. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE ............................46 Section 16. TERMINATION BY THE CITY......................................................................................46 Section17. INSURANCE.................................................................................................................48 Section 18. PERFORMANCE AND PAYMENT BONDS; SURETY BONDS...................................50 Section 19. PROJECT RECORDS..................................................................................................51 Section20. APPLICABLE LAW....................................................................................................... 51 Section 21. SUCCESSORS AND ASSIGNS...................................................................................51 Section 22. MISCELLANEOUS PROVISIONS................................................................................51 Section 23. ENTIRE AGREEMENT.................................................................................................52 Section24. SEVERABILITY............................................................................................................52 Section25. WAIVER............ 0 0 a a 0 0 **v 0 be to as 002* 0 0 & 6 a * two* m be 0 0 064 0 *0 #0 be as 00 as me *we we v 0 to m 0 *to* too 0 be go to so me & a * so v v f a *0 a 0 0 be of a a to 0 0 *2 52 BIDDER'S BOND..............................................................................................................................54 PERFORMANCEBOND...................................................................................................................56 PAYMENTBOND.............................................................................................................................58 MAINTENANCEBOND....................................................................................................................60 CERTIFICATE OF INSURANCE......................................................................................................63 NOTICETO PROCEED....................................................................................................................65 CHANGEORDER.............................................................................................................................66 SUPPLEMENTARY GENERAL PROVISIONS AND TECHNICAL SPECIFICATIONS ....................67 Section 1. SUPPLEMENTARY GENERAL PROVISIONS...............................................................67 Section 2. TECHNICAL SPECIFICATIONS.....................................................................................81 INVITATION TO BID The City of Anna is soliciting competitive sealed proposals (also referenced herein sometimes as "bids" or "proposals") for the construction of the following project: Slayter Creek Park Phase II Improvements The project consists of the Phase 11 expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two (2) new concrete parking lots. Proposals must be delivered to the attention of the City Secretary for the City of Anna at 111 North Powell Parkway, Anna, Texas 75409, no later than the proposal submission deadline of September 13, 2012 at 3:00 p.m. of Bid Submission Deadline. Any proposals received after the specified time will not be accepted. Timely proposals shall be publicly opened and read aloud in the City Council Chambers on September 13, 2012 at 3:00 p.m. Plans and specifications may be examined, without charge, or purchased at the office of Pacheco Koch Consulting Engineers, 8350 N. Central Expressway, Suite 1000, Dallas, Texas 75206. The cost for the documents are $50.00 per set for full-size documents and will be available beginning August 23, 2012 at 3:00 p.m. The cost of the plans and specifications is non-refundable Submit check cashier's check or money order for payment. Cash will not be accepted. Beginning August 23, 2012, additional information regarding this project may be obtained by contacting the Engineer. Pacheco Koch Consulting Engineers 8350 N. Central Expressway, Suite 1000 Dallas, Texas 75206 Tel: 972-235-3031 Contact: Christopher M. Jones, P.E. Bidders must submit a cashier's check, certified check, or acceptable bidder's bond with their bid as a guarantee that the Bidder will enter into a contract for the project with the Owner within (10) days of Notice of Award of the contract. The security must be payable to the City of Anna in the amount of five percent (5%) of the bid submitted. Contractor must execute the contract, bonds and certificates of insurance on the forms provided in the Plans and specifications. Contractors for this project must pay no less than the prevailing wage rates for the area established by the Owner and included in the plans and specifications. In accordance with Texas Gov't Code Sec. 2253,021, the successful bidder will be required to furnish a performance bond in the amount of 100% of the total contract price in the event that said contract price exceeds $100,000 and a payment bond in the amount of 100% of the total contract price in the event that said contract price exceeds $25,000. If the contract price does not exceed these amounts, the respective statutory bonds will not be required. It shall be each bidder's responsibility to inspect the site of the work and to become fully informed regarding all local conditions under which the work for this project is to be done. The City reserves the right to reject any and all bids. CITY OF ANNA, TEXAS NOTICE TO BIDDERS Section 1. BIDS: 1.01 Competitive sealed bids (also referenced herein sometimes as "bids" or "proposals") must be delivered to the attention of the City Secretary for the City of Anna at 111 North Powell Parkway, Anna, Texas 75409, no later than the proposal submission deadline of September 13, 2012 at 3:00 p.m. of Bid Submission Deadline. Any proposals received after the specified time will not be accepted. Timely proposals shall be publicly opened and read aloud in the City Council Chambers on September 13, 2012 at 3:00 p.m. for the following project: Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. Proposals shall be on the form provided for that purpose and shall be enclosed in two sealed envelopes, one within the other, each clearly marked so as to guard against opening prior to the time set therefor. The bidder shall also be responsible for placing the bidder's firm/entity name on the outside of both such proposal envelopes. The original proposal with three (3) copies shall be provided. 1.02 Proposals which are incomplete, unbalanced, conditional, obscure, or which contain additions not called for, alterations or irregularities of any kind, or which do not comply with the Contract Documents may be rejected at the option of the Owner. 1.03 Each bid shall be signed, on behalf of the individual, partnership or corporation making the proposal, by the person or persons legally authorized to sign the bid document and thereby bind the maker in full responsibility therefor. The address of the individual, partnership or corporation shall be appended and, upon demand, the names and addresses A all members of a partnership or the corporate officers of a corporation shall be made known. 1.04 All questions regarding the process and the submission of proposals shall be directed to the Purchasing Agent in the Municipal Building, 111 N. Powell Parkway, Anna, Texas 75409, telephone number (972) 924-3325. Section 2. CONTRACT DOCUMENTS: 2.01 All work associated with this project shall be done in accordance with contract documents described in the Contract Agreement. 2.02 All bidders shall be thoroughly familiar with all of the requirements set forth on the contract documents for the construction of this project and shall be responsible for the satisfactory completion of all work contemplated by said contract documents. Section 3. PLANS FOR USE BY BIDDER: It is the intent of the City of Anna that all parties with an interest in submitting a bid on the project covered by the contract documents be given a reasonable opportunity to examine the documents and prepare a bid without charge. The contract documents may be examined without charge as noted in the Invitation to Bid. Section 4. TIME AND ORDER FOR COMPLETION: 4.01 The construction covered by the contract documents shall be fully complete within 90 consecutive calendar days from the date specified in the Notice to Proceed issued by the City of Anna to the successful bidder. 4.02 The Contractor will be permitted to prosecute the work in the order of his own choosing, provided however, the City reserves the right to require the Contractor to submit a progress schedule of the work contemplated by the contract documents. In the event the City requires a progress schedule to be submitted and it is determined by the City that the progress of the work is not in accordance with the progress schedule so submitted, the City may direct the Contractor to take such action as the City deems necessary to insure completion of the project within the time specified. Section 5. TWO-YEAR MAINTENANCE BOND: Contractor shall furnish the City of Anna a maintenance bond to guarantee against defects in the construction or equipment furnished under the project for two years following acceptance. The bond shall be executed by a surety company holding a license to do business in the State of Texas and acceptable to the City of Anna, in an amount equal to one hundred (100) percent of the original contract price. Subsequently, and at the option of the City, the successful bidder may be required to furnish an additional maintenance bond or a replacement bond in an amount such that all maintenance bond(s) furnished hereunder equal the adjusted price of the contract based on change orders. Section 6. PLANS FOR THE CONTRACTOR: The Contractor will be furnished two sets of specifications, and related contract documents for his use during construction. Specifications and exhibits for use during construction will only be furnished directly to the Contractor. The Contractor shall then distribute copies of specifications to suppliers, subcontractors, or others, as required for proper prosecution of the work contemplated by the Contractor. Section 7. PREPARATION OF PROPOSAL: 7.01 The bidder shall submit his proposal on forms furnished by the City. All blank spaces in the form shall be correctly filled in and the bidder shall state the price both in words and numerals, for which he proposes to do the work contemplated or furnish the materials required. Such prices shall be written in ink, distinctly and legibly, or typewritten. In case of discrepancy between the price written in words and the price written in numerals, the price written in words shall govern. If the proposal is submitted by an individual, his name must be signed by him or his duly authorized agent. If a proposal is submitted by a firm, association, or partnership, the name and address of each member must be given and the proposal signed by a member of the firm, association or partnership, or person duly authorized. 7.02 The successful bidder is required to provide segregated amounts for cost of labor and other services from materials and other tangible personal property to be ultimately consumed in this project. 3 If the proposal is submitted by a company or corporation, the company or corporate name and business address must be given, and the proposal signed by an official or duly authorized agent. Where applicable, Powers of Attorney authorizing agents or others to sign proposals must be properly certified and must be in writing and submitted with the proposal. 7.03 The proposal shall be executed in ink. Each proposal shall be enclosed in a sealed envelope, addressed as specified in the Notice to Bidders, and endorsed on the outside of the envelope in the following manner: a) Bidder's name. b) Proposal for: Slayter Creek Park Phase II Improvements 7.04 Bid proposals may be withdrawn and resubmitted at any time prior to the time set for opening of the bids, but no proposal may be withdrawn or altered thereafter. 7.05 All bidders must supply the following with their bids: a) Qualification Statement of Bidders. b) Qualification Statement of Bidder's Surety. c) Construction schedule. d) Current financial statement. Section 8. BID SECURITY: Each bid must be accompanied by a certified or cashier's check or an approved bidder's bond made payable to the owner in an amount of five (5%) percent of the largest possible total of the bid as a guarantee that, if awarded the contract, the bidder shall enter into a contract and execute all necessary bonds. Section 9. LIQUIDATED DAMAGES FOR FAILURE TO ENTER INTO CONTRACT The successful bidder, upon his failure to execute and deliver the contract and bonds required within 10 business days after he has received notice of the acceptance of his bid, shall forfeit to the Owner, as liquidated damages for such failure or refusal, the bid bond amount and any other security deposited with the bidder's proposal. Section 10. TIME OF COMPLETION AND LIQUIDATED DAMAGES Bidders must agree to commence work on or before a date to be specified in a written "Notice to Proceed" of the Owner and to fully complete the project within the speced time as stated in the proposal. Bidder must agree to pay liquidated damages as required in the contract documents for failure to timely commence work or complete the project. Section 11. PERFORMANCE AND PAYMENT BONDS: Performance and payment bonds are in the amount of not less than one hundred percent (100%) of the contract price conditioned upon the faithful performance of the contract, and upon payment of all persons supplying labor or furnishing materials, will be required upon the forms which are a part of the Contract Documents. Bonds shall be executed by a surety company authorized to do business in the State of Texas and must have a registered Agent for 12 Service located in the State of Texas. Owner shall approve bonds as to form. The Owner may, in its discretion, reject a surety it believes unacceptable; a failure to reject a surety who is unacceptable or fails to perform its obligations shall incur no liability to Owner. Section 12. BIDDER'S KNOWLEDGE OF CONDITIONS: Prior to submission of a proposal, bidders shall have made a thorough inspection of the site of the work and a thorough examination of the plans and specifications, and shall become informed as to the nature of the work, labor conditions, and all other matters that may affect the cost and time of completion of the work. Section 13. INTERPRETATION OF DOCUMENT: If any person contemplating submitting a bid is in doubt as to the meaning of any part of the plans, specifications, or other proposed contract documents, he may submit to the Engineer a written request for an interpretation thereof prior to seven (7) days of the time of opening of sealed bids. The person submitting the request will be responsible for its prompt delivery. Any interpretation of these documents will be made only by addendum duly issued and a copy of such addendum will be mailed or delivered to each person known to have received a set of such documents. The Engineer will not be responsible for any other explanations or interpretations. Section 14. AWARD OF CONTRACT: 14.01 It is the intent of the City of Anna that this project be completed as quickly and economically as is feasible. A tabulation of the bids received will be prepared for consideration by the City Council. 14.02 Axis may be made either to the lowest responsible bidder or the bidder who provides goods or services at the best value for the City. No conditional bids will be accepted. The successful bidder must submit both base and alternate base bids. Unless the bids are unreasonably high and/or the Owner rejects all bids, the Owner intends to award the contract promptly on the basis of the following: X Lowest Responsible Bidder, or The Owner retains the right to waive informalities and to reject any or all bids. Section 15. PROTECTION OF THE PUBLIC: For protection and convenience of the public and emergencies, the successful bidder shall furnish the City with a telephone number where the Contractor can be contacted 24 hours a day during the entire construction period of this project. This telephone number shall be furnished to the City in writing prior to the beginning of construction. Section 16. AFFIDAVIT AGAINST PROHIBITED ACTS: It shall be the successful bidder's responsibility to complete an affidavit against prohibited acts, on a form contained as part of the Contract Documents, prior to execution of the contract by the City of Anna. Failure to complete this form may prohibit the Contractor's ability to secure the contract. 5 Section 17. ENGINEER: The term "Engineer" shall refer to the City Engineer or his authorized representative. Section 18. AMERICAN DISABILITIES ACT: "Any person, firm business, partnership, or corporation that provides a service or function to the public or employees, agents or officials of the city of which is performed on behalf of the City of Anna, shall comply with 42 U.S.C. 121 0-1 2213 and any amendments thereto, known as the "American Disabilities Act of 1990"." Section 19. MISCELLANEOUS 19.01 Proposals received in the City of Anna after submission deadline will be considered void and unacceptable. The City of Anna is not responsible for lateness or non- delivery of mail, carrier, etc., and the date/time stamp in City Hall shall be the official time of receipt. 19.02 A proposal may not be withdrawn or canceled by the bidder without the permission of the City for a period of sixty (60) days following the date designated for the receipt of proposals, and bidder so agrees upon submittal of their proposal. 19.03 The City of Anna is exempt by law from payment of Texas State Sales Tax and Federal Excise Tax. Bidder shall include any sales taxes from concession sales of taxable items on City property in the total price of the sale, and shall be responsible to report and pay such taxes in a timely manner. 19.04 No oral statement of any individual the terms, conditions or Specifications stated Change Orders to the Contract Agreement will Manager or his agent. shall modify or otherwise change, or affect in the resulting Contract Agreement. All be made in writing by approval of the City 19.05 If during the life of the Contract Agreement, the successful bidder's net prices to other customers for items awarded herein are reduced below the Contracted price, it is understood and agreed that the benefits of such reduction shall be extended to the City of Anna. 19.06 All delivery and freight charges (F.O.B. City of Anna) are to be included in the proposal price. 19.07 Proposals shall show number of days required to achieve Substantial Completion of the Project. Failure to state delivery time may cause proposal to be rejected. 19.08 Effective January 1, 2006, Chapter 176 of the Texas Local Government Code requires that any vendor or person considering doing business with a local government entity disclose in the Questionnaire Form CIQ, the vendor or person's affiliation or business relationship that might cause a conflict of interest with a local government entity. By law, this questionnaire must be filed with the records administrator of the City of Anna not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 0 19.09 The bidder shall not offer or accept gifts of anything of value nor enter into any business arrangement with any employee, official or agent of the City of Anna. 19.10 Proposals must comply with all federal, state, county, and local laws concerning these types of service(s). 19.11 Design, strength, quality of materials must conform to the highest standards of manufacturing and engineering practice. 19.12 All items supplied against credit must be new and unused, unless otherwise specified, in first-class condition and of current manufacturer. 19.13 Inspections of the project work will be made by the City or its independent contractors to ensure compliance with all applicable laws and regulations, and the specifications of this project. 19.14 Successful bidder shall defend, indemnify and save harmless the City of Anna and all its officers, agents and employees from all suits, actions, or other claims of any character, name and description brought for or on account of any injuries or damages received or sustained by any person, persons, or property on account of any negligent act or fault of the successful bidder, or of any anent, employee, subcontractor or supplier in the execution of, or performance under, any Contract which may result from proposal award. Successful bidder indemnifies and will indemnify and save harmless the City from liability, claim or demand on their part, agents, servants, customers, and/or employees whether such liability, claim or demand arise from event or casualty happening or within the occupied premises themselves or happening upon or in any of the halls, elevators, entrances, stairways or approaches of or to the facilities within which the occupied premises are located. Successful bidder shall pay any judgment with costs which may be obtained against the City mowing out of such iniury or damages. In addition, successful bidder shall obtain and file with Owner City of Anna a Standard Certificate of Insurance and applicable policy endorsement evidencing the required coverage and naming the owner City of Anna as an additional insured on the required coverage. Each insurance policy to be furnished by successful bidder shall include, by endorsement to the policy, a statement that a notice shall be given to the City of Anna by Certified Mail thirty (30) days prior to cancellation or upon any material change in coverage. 19.15 Successful Bidder shall pay or cause to be paid, without cost or expense to the City of Anna, all Social Security, Unemployment and Federal Income Withholding Taxes of all such employees and all such employees shall be paid wages and benefits as required by Federal and/or State Law. 19.16 Specifications and model numbers are for description only. Bidder may propose on description only. Bidder may propose on alternate model but must clearly indicate alternate model being proposed. Bidder must enclose full descriptive literature on alternate item(s). 19.17 The apparent silence of specifications as to any detail or to the apparent omission of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practices are to prevail. All interpretations of specifications shall be made on the basis of this statement. ANY QUESTIONS concerning the Invitation for Bids and Notice to Bidders should be directed to: James Parkman, Director of Public Works City of Anna iparkman( annatexas.gov (972) 9244510 Technical Questions concerning the project should be directed to the Engineer. Christopher M. Jones, P.E. Pacheco Koch Consulting Engineers ciones ,Pkce.com 972-235-3031 e SUBMITTED TO Reviewed by: — Date Received: CONTRACTOR: QUALIFICATION STATEMENT OF BIDDERS City of Anna CIRCLE ONE: Sole Proprietor Partnership Corporation NAME: ADDRESS: CITY: PHONE: PRINCIPAL PLACE OF BUSINESS: COUNTY STATE Joint Venture PARTNER: ADDRESS. CITY: PHONE: PRINCIPAL PLACE OF COUNTY BUSINESS: STATE IF THE CONTRACTOR IS A CORPORATION, FILL OUT THE FOLLOWING: STATE OF INCORPORATION: LOCATION OF PRINCIPAL OFFICE: CONTACT PERSONS AT OFFICE: PERSON EXECUTING CONTRACTS ON BEHALF OF CORPORATION: NAME: ADDRESS: TITLE: PHONE: NAMES OF OFFICERS (IF APPLICABLE) CITY STATE ZIP LIST NUMBER OF EMPLOYEES WORKING FOR CONTRACTOR: LIST ALL EQUIPMENT TO BE USED ON THIS PROJECT: (PLEASE USE ATTACHMENT) NUMBER OF YEARS IN BUSINESS AS A GENERAL CONTRACTOR ON PROJECTS SIMILAR TO THIS PROJECT: TYPES) OF WORK DONE: (CIRCLE) Asphalt Paving Concrete Paving Misc. Concrete Channel Lining Pump Stations Concrete Structures: Inlets, Public Facilities (list types):, Other: COMMENTS: Storm Sewer Earth Work Bridge Work Demolition Landscaping Box Culverts, Junction Boxes Water &Sanitary Sewer Lines Steel Erection Painting Fog Seal Chip Seal LIST RECENTLY COMPLETED PROJECTS OF THE TYPE OF WORK QUALIFYING FOR OR SIMILAR WORK, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: (USE ATTACHMENTS IF NECESSARY) CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: CONTRACT PRICE: HONE: LIST INCOMPLETE PROJECTS, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT LISTED: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: (USE ATTACHMENTS IF NECESSARY) CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: IF COMPANY IS UNDER NEW MANAGEMENT, PLEASE LIST NAMES OF STAFF AND QUALIFICATION AND/OR EXPERIENCE OF SAID PERSONS. (PLEASE USE ATTACHMENT.) HAVE YOU OR ANY PRESENT PARTNER(S) OR OFFICERS) FAILED TO COMPLETE A CONTRACT? IF SO, NAME OF OWNER AND/OR SURETY: la CONTACT PERSON: 10 ARE THERE PAYABLE? ANY UNSATISFIED DEMANDS UPON YOU AS TO YOUR ACCOUNTS IF SO, GIVE NAMES, AMOUNTS, AND EXPLANATIONS: BANK REFERENCE: Bank: _ Address: City: Contact Person: Phone: MUNICIPALITY REFERENCE: City: Contact Person: Address: OTHER CREDIT REFERENCES: Name: Address: Phone: Name: _ Address: Phone: State: Zip: Position: Phone: In compliance with Invitation to Bid for above mentioned types of projects, the undersigned is submitting the information as required with the understanding that the purpose is only to assist in determining the qualifications for this organization to perform the type and magnitude of work designated, and further, guarantee the truth and accuracy of all statements made, and will accept your determination of qualifications without prejudice. The surety herein named, any other bonding company, bank, sub -contractor, supplier, or any other person(s), firm(s) or corporations with whom I (we) have done business, or who have extended any credit to me (us) are hereby authorized to furnish you with any information you may request concerning performance on previous work and my (our) credit standing with any of them; and I (we) hereby release any and all such parties from any legal responsibility whatsoever on account of having furnished such information to you. Signed: Title: Company: Date: COPY TO LOCAL UNDERWRITING OFFICE OF PROPOSED SURETY Name: _ Address: Phone: City: _ State: m QUALIFICATION STATEMENT OF BIDDER'S SURETY SUBMITTED TO: City of Anna BIDDER: _ ADDRESS. PHONE: E 2. 3. Has this surety furnished contract bonds on contracts now complete? Has this surety furnished contract bonds on contracts now incomplete? What is the maximum bonding capacity of this Contractor? 4. Is the current financial information on this Contractor satisfactory? 5. Does information obtained indicate accounts are paid when due? If not, give details: 6. Is it your opinion that the bidder has sufficient experience and financial resources to satisfactory perform the contract? 7. Provided this bidder does not assume other commitments or that you do not acquire further information that in your opinion will materially affect the bidder's capacity to perform this contract, will you furnish the bonds as specified? REMARKS: SURETY: _ SIGNED: _ TITLE: ADDRESS: CITY_ PHONE: (IN DUPLICATE) STATE ZIP rya PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA,TEXAS General Decision: TX20080057 Date: September 11, 2009 Construction Types: Building Counties: Collin and Denton Counties in Texas. Rates are for Building construction projects only. For other wage rates or for updated rates, please the Texas General Decision County Index located at http://www.gpo..qov/davisbacon/tx.html Rates $ Fringes Acoustical Installer 12.27 0.00 Carpenter (Excluding Acoustical Installers & Drywall Hangers) 12.36 1.38 Drywall Hanger 12.17 0.00 Electrician 13.10 1.97 Laborer, Unskilled (Excluding Landscape Laborers) 7.25 0.86 Painter: Brush & Spray 10.15 0.00 Painters doing drywall finishing only 10.08 0.00 Paperhanger 12.50 2020 Plumbers and Pipefitters (Including HVAC Work) 12.47 1.87 Power Equipment Operator (Cranes) 15.00 2.85 Roofer, Including Built Up, Composition and Single Ply Roofs 10.17 1.10 Sheet Metal Worker (Including HVAC Duct Work) 10.94 1.45 Sprinkler Fitter 12.00 2.30 Welders —Receive rate prescribed for craft performing operation to which welding is incidental. 13 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 matter forth a position on a wage determination * 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. (Vashington, 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. 14 VENDORS COMPLIANCE I U STATE LAW Texas Government Code, Chapter 2252, Subchapter A provides that, in order to be awarded a contract as low bidder, non-resident bidders (out of state Contractors whose corporate offices or principal place of business are outside of the State of Texas) bid projects for construction, improvements, supplies or services in Texas at an amount lower than the lowest Texas resident bidder by the same amount that a Texas resident bidder would be required to underbid a non-resident bidder in order to obtain a comparable contract in the state in which the non-resident's principal place of business is located. The appropriate blanks in Section 4 must be filled out by all out -of --state or non-resident bidders in order for your bid to meet specifications. The failure of out -of --state or non-resident Contractors to do so will automatically disqualify that bidder. Resident bidders must check the box in Section B. A. Non-resident vendors in _ business, are required to be _ A copy of the statute is attached. (give state), our principal place of percent lower than resident bidders by state law. Non-resident vendors in (give state), our principal place of business, are not required to underbid resident bidders. B. Our principal place of business or corporate office is in the State of Texas. BIDDER/OFFEROR: Company City Phone By: (please print) Signature: Title: State (please print) THIS FORM MUST BE RETURNED WITH YOUR QUOTATION 15 CONFLICT OF INTEREST QUESTIONNAIRE 16 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. 1491, 80th Leg., Regular Session, OFFICEUSEONLY This questionnaire is being filed in accordance with Chapter 176, Local Government Code Date Received by a person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 21 ❑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 the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officerwith whom filer has employment or business relationship. Name of Officer This section (item 3 including subparts A, B, C & D) must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001 (1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? F7 Yes F7 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? a Yes F7 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 10 percent or more? F7 Yes F] No D. Describe each employment or business relationship with the local government officer named in this section. 4 Signature of person doing business with the governmental entity Date Adopted 06/29l2007 17 AFFIDAVIT AGAINST PROHIBITED ACTS m AFFIDAVIT AGAINST PROHIBITED ACTS I hereby affirm that I am aware of the provisions of Texas Penal Code Section 36.021 36.08, 36.09 and 36.10 dealing with Bribery and Gifts to Public Servants. I further affirm that I will adhere to such rules and instruct and require all agents, employees, and sub -contractors to do the same. I am further aware that any violation of these rules subjects the Contract Agreement for this project to revocation, my removal from bid lists, prohibiting future contract/subcontract work, revocation of permits, and prosecution. Signature ATTEST (if corporation) Date Date 20 Proposal of Address: (hereinafter called "Bidder"). To the Honorable Mayor and City Council City of Anna, Texas (hereinafter called "Owner") Deadline for Submission of Sealed Competitive Bid: 3:00 p.m. on September 13, 2012 Date of Sealed Bid Opening: 3:00 p.m. on September 13, 2012 Gentlemen: The Bidder, in compliance with your invitation for bids for the construction of: Slayter Creek Park Phase II Improvements The project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. for the City of Anna, Texas, having carefully examined the plans, specifications, notice to bidders, invitation to bid and all other related contract documents and the site of the proposed work, and being familiar with all of the conditions surrounding the construction of the proposed project, including the availability of materials and labor, hereby proposes to furnish all labor, materials, and supplies; and to construct the project in accordance with the plans, specifications and contract documents, within the time set forth therein and at the prices stated. The Bidder binds himself on acceptance of his proposal to execute the Contract Agreement and any required bonds, according to the accompanying forms, for performing and completing the said work within the time stated and for the prices stated in Exhibit "A" of this proposal. Bidder hereby agrees to commence the work on the above project within ten (10) days of receipt of written "Notice to Proceed" and to fully complete the project within ninety (90) consecutive calendar days, thereafter as stipulated in the specifications and other contract documents. Bidder hereby further agrees to pay to Owner as liquidated damages the sum specified in Item of the North Central Texas Council of Governments Standard Specifications for Public Works Construction, and quoted below, for each calendar day in excess of the time set forth hereinabove for completion of this project, all as more fully set forth in the general conditions of the contract documents. LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE ON TIME: The time of completion is of the essence for this project. For each day that any work shall remain uncompleted after the time specified in the proposal and the Contract Agreement, or the increased time granted by the OWNER, or as equitably increased by additional work or materials ordered after the Contract Agreement is signed, the sum per day given in the following schedule, unless otherwise specified in the special provisions, shall be deducted from the monies due the CONTRACTOR: 21 AMOUNT OF CONTRACT AMOUNT OF LIQUIDATED DAMAGES Less than $25,000.00 $100.00 Per Day $251000.00 to $99,999.99 $ IOU .00 Per Day $100,000.00 to $999,999.99 $240.00 Per Day More than $170001000.00 $500.00 Per Day The sum of money thus deducted for such delay, failure or non -completion is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages, per day that the CONTRACTOR shall be in default after the time stipulated in the Contract Agreement for completing the work. The said amounts are fixed and agreed upon by and between OWNER and CONTRACTOR because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the OWNER in such event would sustain; and said amounts are agreed to be the amounts of damages which the OWNER would sustain and which shall be retained from the monies due, or that may become due, the CONTRACTOR under the Contract Agreement; and if said monies be insufficient to cover the amount owing, then the CONTRACTOR or its surety shall pay any additional amounts due. In the event that the actual damages incurred by the OWNER exceed the amount of liquidated damages, OWNER shall be entitled to recover its actual damages. Bidder understands and agrees that this bid proposal shall be completed and submitted in accordance with the Instructions to Bidders. Bidder understands that the Owner reserves the right to reject any or all bids and to waive any informality in the bidding. The Bidder agrees that this bid shall be good and may not be withdrawn for a period of sixty (60) calendar days from date of bid opening until the date that the project is awarded by the City Council. The undersigned Bidder hereby declares that he has visited the site of the work and has carefully examined the plans, specifications, and contract documents pertaining to the work covered by this bid, and he further agrees to commence work on or before the date specified in the written notice to proceed, and to substantially complete the work on which he has proposed, as provided in the contract documents. Enclosed with this proposal is a Cashier's Check or Certified Check for: 5% Greatest Amount Bid Dollars ($5% GAB), which it is agreed shall be collected and retained by the Owner as liquidated damages in the event the proposal is accepted by the Owner and the undersigned fails to execute the necessary contract documents and the required bond (if any) with the Owner within ten (10) days after the date of receipt of written notification of acceptance of said proposal; otherwise, said check or bond shall be returned to the undersigned upon demand. zz Bidder understands and agrees that the Contract Agreement to be executed by Bidder shall be bound and include all contract documents made available to him for his inspection in accordance with the Invitation to Bid. The Contractor's attention is called to the fact that any estimate of quantities of work to be done and materials to be furnished under the specifications as shown on the Proposal, or elsewhere, is approximate only and not guaranteed. The Owner does not assume any responsibility that the final quantities shall remain in strict accordance with the estimated quantities, nor shall the Contractor plead misunderstanding or deception because of such estimate of quantities or of the character, location of the work or other conditions pertaining thereto. Payment will be made on actual quantities installed at the unit bid price, and no claim will be made for anticipated profits for any decrease in profits. It is understood that the following quantities of work to be done at unit prices are approximate only, and are intended principally to serve as a guide in evaluating bids. It is further agreed that the quantities of work to be done at unit prices and materials to be furnished may be increased or diminished as may be considered necessary, in the opinion of the Engineer, to complete the work fully as planned and contemplated, and that all quantities of work, whether increased or decreased are to be performed at the unit bid prices. 23 I'C•13 SLAT CM CREEK PARK PHASE II IMPROVEMENTS ITEM NO. I QUANT. EST. UNITS I DESCRIPTION AND UNIT PRICE IN WORDS I FIGUR S I AMOUNT i Park Roads and Parkng 1 11800 CY Earthwork, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per per Cubic Yard. 2 11,900 SY Lime Stabilized Base Course, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Square Yard. 3 11,300 SY 6" Reinforced Concrete Pavement (Parking), complete and in place per the drawings and specifications for the sum of Dollars $ $ and Cents per Square Yard. 4 2,900 LF Integral concrete Curb and Gutter, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Linear Foot 5 500 LF Road Striping, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Linear Foot. 6 320 EA Parking Striping, complete and in place per the drawings and specifications for the sum of Dollars $ $ and Cents per Each. 7 200 LF Furnish and install 4" PUC conduit, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Linear Foot. 8 690 LF Furnish and install cable barrier fence, complete and in place to match existing fence for the sum of Dollars and $ $ Cents er Linear Foot. Sub -Total (Section) $ EXHIBIT A, PAGE 2 BID PROPOSAL FOR A,\MAIN ham 7!1!1 _1�:i�:1_���111►�iIJ ►�iI��? UNIT ITEM EST. PRICE IN NO. QUANT. UNITS DESCRIPTION AND UNIT PRICE IN WORDS FIGURES AMOUNT Trails/Sidewalk 9 11500 CY Earthwork, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Cubic Yard. 10 31940 SY 4" Concrete Sidewalk Pavement including six (6) Barrier Free Ramps, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Square Yard. 11 230 LF Furnish and install 12" PVC or HDPE storm pipe, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Linear Foot. Sub -Total $ (Section) Athletic Fields 12 2 EA Finished Grading, Infield, Mound & Turf Seeding (Baseball Field), complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Linear Foot. 13 2 AC Finished Grading & Turf Seeding (Soccer Field), complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Acre. 14 3 EA Field Irrigation (2 Baseball & 1 Multipurpose), complete and in place per the drawings and specifications for the sum of Dollars and Cents per Each. $ $ 15 7.5 AC Lawn Irrigation, complete and in place per the drawings and specifications for the sum of Dollars $ $ and Cents per Acre. 25 UNIT ITEM EST. PRICE IN NO. QUANT. UNITS DESCRIPTION AND UNIT PRICE IN WORDS FIGURES AMOUNT 16 2 EA Baseball Backstop, Sideline Fence, Concrete Mow Strips & Dugouts, complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents per Each. Sub -Total $ (Section) Additive Alternative A Al 1 LS Furnish and Install Grass Infield with Irrigation, complete and in place per details and specifications for the sum of Dollars and $ $ Cents. Additive Alternative B B 1 LS Furnish and Install Split Face Brick on three sides of each dugout , complete and in place per the drawings and specifications for the sum of Dollars and $ $ Cents. Sub -Total $ (Section) TOTAL AMOUNT — Sla ter Creek Park Phase II Improvements $ Supplemental General Notes Construction Schedule: Work must be completed with 90 consecutive calendar days after notification period of 10-days has passed. ** Any and all existing improvements within the Park damaged by contractor will be replaced to a condition equal to or better than original at no additional cost. 26 BID PROPOSAL •; SLAYTER CREEK PARK PHASE II IMPROVEMENTS Recapitulations E Notice of award will be mailed to the undersigned at the following addresses: By: Contractor Principal Place of Business (Corp. Seal if Bidder is Corporation) Attest: Secretary: Acknowledgment is hereby made of receipt of the following Addenda, if any: No. No. Date: Date: Date: List Subcontracts (Company name, contact number and type of work): 27 REQUEST FOR CERTIFICATE OF EXEMPTION FROM TEXAS LIMITED SALES, EXCISE AND USE TAX Date: TO: City of Anna, Texas Municipal Building 111 N. Powell Parkway Anna, TX 75409 RE: SLAYTER CREEK PARK PHASE II IMPROVEMENTS The undersigned Contractor hereby requests a Certificate of Exemption from the Texas Limited Sales, Excise, and Use Tax in the amount of ($ ) which is an amount not exceeding the contract price of all materials and other tangible personal property to be furnished in connection with the subject property. The undersigned hereby represents that such materials and property have been or will be utilized in the performance of the Contract Agreement to the full extent or the amount for which such Certificate of Exemption is requested. Company By: Signature: Title: Address: City Phone/Fax (Seal if Corporation) (Please Print) (Please Print) State Zip m CONTRACT AGREEMENT THIS Slayter Creek Park Phase II Improvements Contract (hereinafter this "Contract Agreement") entered into this - day of 2012 by and between the CITY OF ANNA, TEXAS, a Texas municipal corporation, ("City") and ' , located at ("Contractor"). WITNESSETHa WHEREAS, the City wishes to contract for the project identified as Slayter Creek Park Phase II Improvements. The project consists of the Phase II expansion to the existing Slayter Creek Park. (the "Project"); and WHEREAS, the Project shall include all work and activities necessary to complete the following scope of work (hereinafter referenced as "Work"): The improvements are generally described as two new baseball fields with associated sidewalk, a new multi purpose field with adjacent trail extension, field and lawn irrigation systems, three (3) barrier free ramps and two new concrete parking lots in accordance with the Contract Documents as that term is defined herein; and WHEREAS, the Contractor has represented to the City that its personnel are qualified to provide the Work required in this Contract Agreement in a professional, timely manner as time is of the essence; and WHEREAS, the City has relied upon the above representations by the Contractor; and WHEREAS, the City's consulting engineer has recommended that an agreement for aforesaid construction be entered into with the Contractor; NOW, THEREFORE, for and in consideration of these premises, of the mutual covenants herein set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: Section 1. DOCUMENTS INCORPORATED BY REFERENCE This Contract Agreement includes the recitals set forth above and the following documents: Invitation to Bid; Notice to Bidders; Qualification Statement of Bidders; Qualification Statement of Bidder's Surety; Prevailing Wage Rates for Municipal Construction in Anna, Texas; Vendors Compliance to State Law; Conflicts of Interest Questionnaire; Affidavit Against Prohibited Acts; Proposal and Bid Form; Request for Certificate of Exemption from Texas Limited Sales, Excise and Use Tax; Contract Agreement; Bidders Bond; Performance Bond; Payment Bond; Maintenance Bond; Certificate of Insurance; Notice to Proceed; Any executed Change Orders; Supplementary General Provisions and Technical Specifications; and, Plans, Specifications and Drawings and all other documents made available to bidder for his inspection in accordance with Invitation to Bid,2 2 If plans, specifications or drawings are too bulky or cumbersome to be physically bound, they are to be considered incorporated by reference into the aforementioned contract documents. 29 III of which are hereby incorporated herein by reference, whether or not attached hereto, and made a part hereof (hereinafter along with this Contract Agreement and referenced collectively as the "Contract" or "Contract Documents"). Change Orders issued hereafter, Construction Change Directives, a Direction for a Minor Modification in the Work issued by the City, and any other amendments executed by the City and the Contractor, shall become and be a part of the Contract Documents. Documents not included or expressly contemplated in this Section 1 do not, and shall not, form any part of the Contract. The Contract Documents are intended to be complementary, and a requirement in one document shall be deemed to be required in all documents. However, in the event of any conflict between any of the above -listed documents and this Contract Agreement, this Contract Agreement shall control. Section 2. REPRESENTATIONS OF THE CONTRACTOR In order to induce the City to execute the Contract and recognizing that the City is relying thereon, the Contractor, by executing the Contract, makes the following express representations to the City: 2.01 The Contractor is fully qualified to act as the general contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the general contractor for, and to construct the Project; 2.02 The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated; 2.03 The Contractor has received, reviewed and examined all of the documents which make up the Contract, including, but not limited to all plans and specifications, and has found them to the best of its knowledge, to be complete, accurate, adequate, consistent, coordinated and sufficient for construction. With respect to the intent and interpretation of the Contract, the City and the Contractor agree as follows: 3.01 This Contract Agreement (along with its exhibits and other documents expressly referenced in Section 1, above), together with the Contractor's and Surety's bid/proposal bond, performance and payment bonds, and maintenance bonds for the Project constitute the entire and exclusive agreements between the parties with reference to the Project, and said Contract supersedes any and all prior discussions, communications, representations, understandings, negotiations, or agreements. 3.02 Anything that may be required, implied or reasonably inferred by the documents which make up the Contract, or any one or more of them, shall be provided by the Contractor with no increase to the Contract Price; 3.03 Nothing contained in the Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between the City and any person except the Contractor; 3.04 When a word, term, or phrase is used in the Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage; 3.05 Wherever the Contract calls for "strict" compliance or conformance with the Contract Documents as to matters —other than compliance with time limits, providing an updated schedule, and claim and change order procedures —the term shall mean within tolerances as described specifically in the Contract Documents, or if not specifically described, within industry standards and tolerances for deviation for the specific item or procedure in question; 3.06 The words "include", "includes", or "including as used in the Contract, shall be deemed to be followed by the phrase, "without limitation"; 3.07 The listing herein of any items as constituting a material breach of the Contract shall not imply that any other, non listed item will not constitute a material breach of the Contract; 3.08 The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up the Contract, shop drawings, and other submittals and shall give written notice to the City of any conflict, ambiguity, error or omission which the Contractor may find with respect to these documents, before proceeding with the associated part of the Work. The express or implied approval by the City or its designee of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with the Contract. If the Contractor performs any activity knowing it involves an error, inconsistency or omission which was recognized, obvious, or reasonably should have been recognized, without such notice to the City, the Contractor shall assume responsibility for such performance and shall bear the costs for correction; 3.09 In the event of any conflict, discrepancy, or inconsistency among any of the documents which make up the Contract, the following shall control: (1) as between this Contract Agreement and any other document, this document shall govern; or, (2) in the case of any conflict, discrepancy or inconsistency among any of the other Contract Documents, and such conflict is not resolved by reference to the Supplementary General Provisions and Technical Specifications, then the Contractor shall notify the City immediately upon discovery of same for resolution. Section 4. CONTRACTOR'S PERFORMANCE The Contractor shall perform all of the Work required, implied or reasonably inferable from the Contract including, but not limited to, the following: 4.01 The Contractor will complete the entire Work described in the Contract Documents, except as specifically identified therein as the work of other parties or expressly excluded by specific reference, in accordance with the terms herein. 4.02 The furnishing of any and all required surety bonds and insurance certificate(s) and endorsement(s); 4.03 The provision or furnishing, and prompt payment therefor, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, disposal, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits or licenses required for the construction of the Project; 4.04 The creation and maintenance of a detailed and comprehensive copy of the drawings, specifications, addenda, change orders and other modifications depicting all as -built construction. Said items shall be submitted to the City, along with other required submittals upon Completion of the Project, and receipt of same by the City shall be a condition precedent to final payment to the Contractor. The Contractor shall prepare and submit final as -built drawings to the City. 31 Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS 5.01 The Contractor shall commence the performance of the Contract on the date set forth in the Notice to Proceed issued by the City Manager or the City Manager's designee and shall diligently continue its performance to and until Completion of the Project. The Contractor shall accomplish Substantial Completion (as defined herein below) of the Project not more than ninety (90) calendar days following the issuance of the Notice to Proceed, (sometimes hereinafter referred to as the "Contract Time"). This Contract Time includes five (5) inclement weather days. By signing the Contract, the Contractor agrees that the Contract Time is a reasonable time for accomplishing Completion of the Project and completion of the Project within the Contract Time is of the essence. 5.02 For each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion, the Contractor shall pay the City the sum per day (or said per -day sum shall be deducted from the monies due the Contractor) as set forth in the following schedule: AMOUNT OF CONTRACT AMOUNT OF LIQUIDATED DAMAGES Less than $25,000.00 $100.00 Per Day $25,000.00 to $99,999.99 $160.00 Per Day $100,000.00 to $999,999.99 $240.00 Per Day More than $1,000,000.00 $500.00 Per Day Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the City, estimated at the time of executing the Contract. When the City reasonably believes that Substantial Completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the City to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the City has withheld payment, the City shall promptly release to the Contractor those funds withheld over and above what ultimately came due as liquidated damages; 5.03 The term "Substantial Completion", as used herein, shall mean the point at which, as certified in writing by the City's consulting architect/engineer or other appropriate independent contractor or representative and approved by the City, the Project is at a level of completion in strict compliance with the Contract such that the City or its designee can enjoy beneficial use or occupancy and can legally occupy, use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion. 5.04 All limitations of time set forth herein are material and are of the essence of the Contract. 5.05 Contractor agrees to punctually and diligently perform all parts of the Work at the time scheduled in this Contract Agreement. In this connection, Contractor agrees that it will keep itself continually informed of the progress of the job and will, upon its own initiative, confer with the City so as to plan its Work in coordinated sequence with the work of the City, if any, and of others and so as to be able to expeditiously undertake and perform its work at the time most beneficial to the entire Project. The Contractor will be liable for any loss, costs, or damages sustained by the City for delays in performing the Work hereunder, other than for excusable delays, as set forth in 5.06 below, for which Contractor may be granted a reasonable extension of time. 32 5.06 If the Contractor is delayed at any time in the progress of the Work by any separate contractor employed by the City, or by changes in the Work, or by labor disputes, fire, unusual delay in transportation, unusually severe weather conditions, unavoidable casualties, delays specifically authorized by the City, or by causes beyond the Contractor's control, avoidance, or mitigation, and without the fault or negligence of the Contractor and/or subcontractor or supplier at any tier, then the contract time shall be extended by Change Order for such reasonable time, if any, as the City may determine that such event has delayed the progress of the Work, or overall completion of the Work if the Contractor complies with the notice and documentation requirements set forth below. (1) If the Contractor is delayed, obstructed, hindered or interrupted for a period of time exceeding seven calendar days by any act or neglect of the City, an adjustment shall be made for any increase in the direct cost of performance of this contract (excluding profit, extended home office overhead, incidental or consequential damages or disruption damages) and the Contract modified in writing accordingly. The Contractor must assert its right under this section by giving written notice to the City Manager within10 calendar days of the beginning of a delay, obstruction, hindrance or interruption by the City. No adjustment shall be made for any delay, obstruction, hindrance or interruption after final payment under this contract or to the extent that performance would have been so delayed, obstructed, hindered or interrupted by any other cause, including, but not limited to concurrent cause or fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract. The direct costs described above shall be limited to those direct costs attributable solely to this project, and shall be subject to documentation and verification of costs as required by the City. If unit prices are established in the Contract Documents or subsequently agreed upon, they shall form the basis for cost calculations under any claims for delay. (2) Any claim for extension of time shall be made in writing to the City, not more than 10 calendar days from the beginning of the delay. The notice shall indicate the cause of delay upon the progress of Work. If the cause of the delay is continuing, the Contractor must give such written notice every 10 calendar days. Within 10 calendar days after the elimination of any such delay, the Contractor shall submit further documentation of the delay and a formal Change Order request for an extension of time for such delay. (3) The written request for a time extension shall state the cause of the delay, the number of calendar days extension requested, and such analysis and other documentation as is reasonably requested by the City to demonstrate a delay in the progress of the Work or the overall project completion. If the Contractor does not comply with the above notice and documentation requirements, the claim for the delay shall be waived by the Contractor. The above notice and documentation requirements shall also be a condition precedent to the Contractor's entitlement to any extension of time. (4) Extensions of time will be the contractor's primary remedy for any and all delays, obstructions, hindrances, or interference. Payment or compensation, for direct costs only (as set forth above), may be made to the Contractor for hindrances or delays solely caused by the City if such delays or hindrances are within the City's ability to control and are not partially caused by the Contractor or any of its agents, subcontractors or others for whom it is responsible. No payment or compensation will be made for interference, obstructions, hindrances or delays which are not solely caused by the City and which the City fails to cure after a reasonable period after written notice. (5) Without limitation, the City's exercise of its rights under provisions related to changes to the Work, regardless of the extent or number of such changes, or the City's exercise of any of its remedies or any requirement to correct or re -execute defective Work, shall not under any circumstances be construed as delays, hindrances or interference compensable further than as described herein. 33 Section 6. FIXED PRICE AND CONTRACT PAYMENTS 6.01 The City shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder the fixed price of The price set forth in this Section 6.01 shall constitute the Contract Price, which shall not be modified except by Change Order or adjustment pursuant to approved unit prices, if any, as provided in the Contract. 6.02 The City shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this Section 6 and as set forth here: (1) On or before the 10th calendar day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a payment request for the period ending the last calendar day of the previous month (the "Payment Request"). Said Payment Request shall be in such format and include whatever supporting information as may be required by the City. Therein, the Contractor may request payment for 90% of that part of the Contract Price allocable to Contract requirements properly provided, labor, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if offsite storage is approved in writing by the City), less the total amount of previous payments received from the City. Payment for materials stored offsite shall be at the discretion of the City and if approved, the Contractor shall provide appropriate documentation to substantiate materials are stored in a bonded warehouse or facility, title or other proof of ownership has been transferred to the City, and that materials have been purchased and paid for by the Contractor (copies of paid invoices must be submitted to the City with payment request). Risk of loss shall be borne by, and insurance must be provided by the Contractor while in storage, transit and use during construction. At 75% completion of the Contract, by dollar value, and at the option of the City, retainage may be reduced to 5% plus an additional amount as detailed in Section 6.06 below for any part of the Work that is defective or non -conforming and in Section 6.02 above for anticipated liquidated damages. (2) Amounts reflected in Change Orders may be included in Payment Requests to the extent they are not in dispute and subject to final approval of cost to the City for such changes in the work. (3) Each Payment Request shall be signed by the Contractor and shall constitute the Contractor's representation that the quantity of Work has reached the level for which payment is requested, that the Work has been properly installed or performed in strict compliance with the Contract, and that the Contractor knows of no reason why payment should not be made as requested. (4) Thereafter, the City shall review the Payment Request and may also review the Work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract. The amount of each such payment shall be the amount approved for payment by the City less such amounts, if any, otherwise owing by the Contractor to the City or which the City shall have the right to withhold as authorized by the Contract, subject to approval by the City. Approval of the Contractor's Payment Requests shall not preclude the City from the exercise of any of its rights as set forth in 6.06 herein below. (5) The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the City has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the City, also furnish to the City properly executed waivers of lien or claim, in a form acceptable to the City, from all subcontractors, materialmen, suppliers or others having lien or claim rights, 34 wherein said subcontractors, materialmen, suppliers or others having lien or claim rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights or other claims relating to the Project site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the City. 6.03 When payment is received from the City, the Contractor shall within seven calendar days pay all subcontractors, material men, laborers and suppliers the amounts they are due for the work covered by such payment. In the event the City becomes informed that the Contractor has not paid a subcontractor, material man, laborer, or supplier as provided herein, the City shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, material man, laborer, or supplier as joint payees. The City shall notify the Contractor of its intent to implement such a procedure, and will give the Contractor a reasonable period to cure any such failure prior to implementing the procedure. Such joint -check procedure, if employed by the City, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check as a co -payee and shall not be deemed to commit the City to repeat the procedure in the future. 6.04 Neither payment to the Contractor, full or partial utilization of the Project for any purpose by the City, nor any other act or omission by the City shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract; 6.05 After written notice to the Contractor and a reasonable opportunity to cure, the City shall have the right to refuse to make payment, in whole or in part, and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to: (1) The quality of a portion, or all, of the Contractor's work not being in accordance with the requirements of the Contract; (2) The quantity of the Contractor's work not being as represented in the Contractor's Payment Request, or otherwise; (3) The Contractor's rate of progress being such that, in the opinion of the City, Substantial Completion may be inexcusably delayed; (4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City, to pay Contractor's Project -related obligations including, but not limited to, subcontractors, laborers and material and equipment suppliers; (5) Claims made, or likely to be made, against the City or its property for which the Contractor or its agents or subcontractors or others for whom it is responsible are, or reasonably appear to be at fault; (6) Loss caused by the Contractor; (7) The Contractor's failure or refusal to perform any of its obligations to the City, after written notice and a reasonable opportunity to cure as set forth above. In the event that the City makes written demand upon the Contractor for amounts previously paid by the City as contemplated in this Section 6.05, the Contractor shall promptly comply with such demand. The City's rights hereunder survive the term of this Contract Agreement, are not waived by final payment and/or acceptance, and are in addition to Contractor's obligations elsewhere herein. 35 6.06 When the Contractor believes that Substantial Completion has been achieved, the Contractor shall notify the City in writing and shall furnish a listing of those matters, if any, yet to be finished. The City will thereupon conduct a site review to confirm that the Project is in fact substantially complete. If the City, through its review, finds that the Contractor's work is not substantially complete, and is required to repeat all, or any portion, of such review, the Contractor shall bear the cost of such repeat site review(s), which cost may be deducted by the City from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by the Contract shall commence on the date of Substantial Completion, Upon Substantial Completion, the City shall pay the Contractor an amount sufficient to increase total payments to the Contractor to 100% of the Contract Price less any amounts attributable to damages, and less 150% of the costs, as reasonably determined by the City, incurred for the City to complete any incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims. Such a calculation by the City of costs for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims shall not bar the City from exercising its stated rights elsewhere in the Contract, or otherwise as provided by law for any incomplete, defective or nonconforming work or claims that are discovered by the City after the date of making such calculation or after the date of any partial or final payment, whether or not such incomplete, defective or nonconforming work or claims were obvious or should have been discovered earlier. 6.07 When the Project is finally complete and the Contractor is ready for a final review, it shall notify the City thereof in writing. Thereupon, the City will perform a final site review of the Project. If the City concurs that the Project is complete in full accordance with the Contract and that the Contractor has performed all of its obligations to the City hereunder, the Contractor will furnish a final Approval for Payment to the City certifying to the City that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to the Contract. If the City is unable to issue its final Approval for Payment and is required to repeat its final review of the Project, the Contractor shall bear the cost of such repeat review(s), which costs may be deducted by the City from the Contractor's final payment; 6.08 The City shall, subject to its rights set forth in Section 6.06 above and elsewhere in the Contract, endeavor to make final payment of all sums due the Contractor within 30 calendar days of the final Approval for Payment, with the exception of items in dispute or concerning which the City has exercised any of its rights to investigate or remove. Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY 7.01 The City has furnished to the Contractor, prior to the execution of this Contract Agreement, all written and tangible material in its possession relevant to the conditions at the site of the Project. Such written and tangible material has been furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the City and for no other purpose. By furnishing such material, the City does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all. 7.02 Differing site conditions. The Contractor shall promptly, and before such conditions are disturbed, notify the City in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in the contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The City shall investigate the conditions, and if it finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the Work under the Contract, whether or not changed as a result of such conditions, an adjustment shall be made, through negotiation and mutual agreement, and the contract modified in writing accordingly. Section 8. CEASE AND DESIST ORDER/OWNER'S RIGHT TO PERFORM WORK 8.01 In the event the Contractor fails or refuses to perform the Work, or any separable part thereof, as required herein, or with the diligence that will ensure its proper, timely completion in accordance with the contract documents, the City may instruct the Contractor, by written notice, to cease and desist further Work, in whole or in part, or to correct deficient Work. Upon receipt of such instruction, the Contractor shall immediately cease and desist, or proceed, as instructed by the City. In the event the City issues such instructions to cease and desist, the Contractor must, within seven calendar days of receipt of the City's instructions, provide a written, verified plan to eliminate or correct the cause of the City's order, which plan appears to the City to be reasonable, actually attainable and in good faith. In the event that the Contractor fails and/or refuses to provide such a plan or diligently execute an approved plan, then the City shall have the right, but not the obligation, to carry out the Work, or any portion thereof, with its own forces, or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of the City performing such work, which costs may be withheld from amounts due to the Contractor from the City. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the City may have against the Contractor. If Work completed by the City or other contractor affects, relates to, is to be attached onto or extended by later Work of the Contractor, the Contractor shall, prior to proceeding with the later Work, and to the extent visible, report any apparent defects or variance from the Contract requirements which would render the Contractor's later Work not in compliance with the Contract requirements or defective or not in compliance with warranties or other obligations of the Contractor hereunder. 8.02 The provisions of this section shall be in addition to the City's ability to remove portions of the Work from the Contract and complete it separately. Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in the Contract Documents, the Contractor shall have and perform the following duties, obligations and responsibilities to the City: 9.01 Reference is hereby made to the continuing duties set forth in Section 3.08 above, which are by reference hereby incorporated in this Section 9.01. The Contractor shall not perform work without adequate plans and specifications, or without, as appropriate, approved shop drawings, or other submittals. If the Contractor performs work knowing or believing, or if through exercise of reasonable diligence it should have known that such work involves an error, inconsistency or omission in the Contract without first providing written notice to the City, the Contractor shall be responsible for such work and shall correct same bearing the costs set forth in Section 3.08 above. 9.02 All work shall strictly conform to the requirements of the Contract. To that end, the Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work, unless otherwise specified in the Contract Documents; 37 9.03 The work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts, errors or omissions of those engaged in the work on behalf of the Contractor, including, but not limited to, all subcontractors and their employees. The Contractor shall maintain an on - site superintendent while any portion of the Work is being performed. The Contractor shall operate exclusively in the capacity of the City's independent contractor as to all work it performs under the Contract, and not as an agent, employee, or representative of the City; 9.04 The Contractor hereby warrants that all laborers furnished under the Contract shall be qualified and competent to perform the tasks undertaken, that the product of such labor shall yield only first-class results, that all materials and equipment provided shall be new (unless otherwise specified) and of high quality, that the completed work will be complete, of high quality, without defects, and that all work strictly complies with the requirements of the Contract. Any work not strictly complying with the requirements of this the Contract shall constitute a breach of the Contractor's warranty. 9.05 The Contractor will be responsible for acquiring all required permit(s)—except as specifically stated in Section 22.01 below —and calling for all required or routine inspections. The Contractor will cooperate with and abide by the decision of inspectors having jurisdiction. Should the Contractor have a dispute with any inspector or entity having jurisdiction, the Contractor shall promptly notify the City Manager or the City Manager's designee. The Contractor shall comply with all legal requirements applicable to the work 9.06 The Contractor shall employ and maintain at the Project site only competent, qualified full time supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are as follows: FUNCTION If at any time the City reasonably determines that any employee of the Contractor is not properly performing the Work in the best interest of the City or the Project, or is hindering the progress of the Work, or is otherwise objectionable, the City shall so notify the Contractor, which shall replace the employee as soon as possible, at no increased cost to the City. 9.07 The Contractor must submit to the City the Contractor's schedule for completing the work prior to submittal of the first application for payment. The City will not review any payment request until such schedule has been submitted and approved. Such schedule shall be in a form as specified in the Contract or which shall have been approved by the City Manager or the City Manager's designee, and which shall provide for expeditious and practicable construction of the Project. The Contractor's schedule shall be updated no less frequently than monthly (unless the parties otherwise agree in writing) and shall be updated to reflect conditions encountered from time to time and shall apply to the total project. Each such revision shall be furnished to the City. Strict compliance with the requirements of this Section 9.07 shall be a condition precedent to payment to the Contractor, and failure by the Contractor to strictly comply with said requirements shall constitute a material breach of the Contract. 9.08 The Contractor shall keep an updated copy of the Contract Documents at the site. Additionally, the Contractor shall keep a copy of approved shop drawings and other submittals. All of these items shall be available to the City during all regular business hours. 9.09 Shop drawings and other such submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any work requiring shop drawings or other submittals unless such shall have been approved in writing by the City or as required by the Contract Documents. All work requiring approved shop drawings or other submittals shall be done in strict compliance with such approved documents or Contract requirements. However, approval by the City shall not be evidence that work installed pursuant thereto conforms with the requirements of the Contract, and shall not relieve the Contractor of responsibility for deviations from the Contract unless the City has been specifically informed of the deviation by a writing incorporated in the submittals and has approved the deviation in writing. The delivery of submittals shall constitute a representation by the Contractor that it has verified that the submittals meets the requirements of the Contract, or will do so, including field measurements, materials and field construction criteria related thereto. The City shall have no duty to review partial submittals or incomplete submittals. The Contractor shall have the duty to carefully review, inspect, examine and physically stamp and sign any and all submittals before submission of same to the City. 9.10 The Contractor shall maintain the Project site and adjacent areas affected by its work and/or the acts of its employees, materialmen and subcontractors in a reasonably clean condition during performance of the work. Upon substantial completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or equipment. If the Contractor fails to do so, the City may complete the cleanup, by its own forces or by separate contract, and shall be entitled to charge the Contractor for same through the collection or withholding of funds through the mechanisms provided elsewhere in this Contract Agreement; 9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to enter upon the Project site and any offsite lay down areas, safety permitting, and to review or inspect the work and any materials on any such site, without formality or other procedure. 39 9.12 The Contractor recognizes that the City may enter into other contracts to perform work relating to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its forces reasonably accommodate the forces of the City and other contractors hired by the City. The Contractor shall coordinate its schedule with the work of other contractors. If the Contractor claims that delay or damage results from these actions of the City, it shall promptly submit a claim as provided herein. 9.13 Protection of persons and property. (1) It shall be the responsibility of the Contractor to initiate, continue and supervise all safety programs and precautions in the performance of the terms of the Contract. The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to its employees, subcontractors' employees, employees of the City and members of the public, the Work itself and unassembled components thereof, and other property at the site or adjacent thereto. As part of the Contractor's obligations hereunder, the Contractor shall erect and maintain all necessary and prudent safeguards, barriers, signs, warnings, etc. (2) With notice to the City, the Contractor shall promptly remedy loss or damage to the Work or any person or property described herein caused in whole or in part by the acts of the Contractor or any subcontractor, sub -subcontractor or materialman. This obligation shall be in addition to the requirements of Section 10 herein. The City may direct the Contractor to remedy known violations of applicable laws, rules, regulations, and interpretations related to safety when and if observed on the site. However, through exercising this authority the City shall not incur any obligations to monitor, initiate, continue, or supervise safety programs and precautions such to diminish the Contractor's primary role in same. The City shall have the right to report suspected safety violations to the Occupational Safety and Health Administration (OSHA) or other appropriate authorities. (3) The Contractor shall promptly notify the City upon discovery of any unidentified material which Contractor reasonably believes to be asbestos, lead, PCB, or other hazardous material, and shall immediately stop work in the affected area of the Project. The Contractor shall not be responsible for removal or other work with regard to such hazardous material unless otherwise agreed between the City and the Contractor. In the case of work stopped due to the discovery of hazardous materials, Section 6 shall apply to claims for delay, hindrance or interference. Work will resume in the affected area of the Project immediately after such time as the hazardous material has been removed or rendered harmless, as certified by an industrial hygienist to be engaged by the City. 9.14 The Contractor warrants to the Owner that materials and equipment furnished under the Contract are of good quality and new unless otherwise required or permitted under the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. Section 10. INDEMNITY Except for expenses or liabilities arising from the negligence of the City, the Contractor hereby expressly agrees to indemnify and hold the Citv harmless against any and all expenses and liabilities arising out of the performance or default of the Contract as follows: 10.01 Contractor shall indemnify, and hold harmless, to the maximum extent permitted by law City and its officers, agents, employees, and consultants from and against any and all liability, damages, losses, (whether in contract or in tort, including personal injury, accidental death or property damage, and regardless, of whether the allegations are false, fraudulent or groundless), and costs (including reasonable attorney's fees, litigation, arbitration, mediation, appeal expenses incurred in any matter, including a proceeding to enforce this Section 10) which in whole or in part are caused by the negligence, recklessness or intentional wrongful misconduct of the Contractor and persons employed by or utilized by the Contractor in Contractor's performance of this Contract Agreement, 10.02 Contractor's obligation to indemnify, defend and hold harmless shall remain in effect and shall be binding upon Contractor whether such injury or damage shall accrue, or may be discovered before or after termination of the Contract 10.03 Contractor's failure to comply with this section's provisions shall constitute a material breach upon which Citv may immediately terminate or suspend this Contract Aareement. Section 11. CLAIMS BY THE CONTRACTOR Claims by the Contractor against the City, other than for time extensions covered by Section 6 hereof, are subject to the following terms and conditions: 11.01 All Contractor claims against the City shall be initiated by a written claim submitted to the City. Notice of such claim shall be received by the City no later than either 10 calendar days after the event, or 10 calendar days after the first appearance of the circumstances causing the claim, whichever is sooner, and same shall set forth in detail all known facts and circumstances supporting the claim. Final costs associated with any claim upon which notice has been filed must be submitted in writing to the City within 30 calendar days after notice has been received; 11.02 The Contractor and the City shall continue their performance hereunder regardless of the existence of any claims submitted by the Contractor including claims set forth in Section 6 hereof; 11.03 In the event the Contractor discovers previously concealed and unknown site conditions which are materially at variance from those typically and ordinarily encountered in the general geographical location of the Project, the Contract Price may, with the approval of the City, be modified, either upward or downward, upon the written notice of claim made by either party within 10 calendar days after the first appearance to such party of the circumstances. Final costs must be submitted within 30 calendar days after such notice is received by the City, unless extended by written agreement of the parties. As a condition precedent to the City having any liability to the Contractor due to concealed and unknown conditions, the Contractor must give the City written notice of, and an opportunity to observe, such condition prior to disturbing it. The failure by the Contractor to give the written notice and make the claim as provided by this Section 11.03 and as required elsewhere under the Contract shall constitute a waiver by the Contractor of any rights arising out of or relating to such concealed and unknown condition; 41 11.04 in the event the Contractor seeks to make a claim for an increase in the Contract Price, as a condition precedent to any liability of the City therefor, unless emergency conditions exist, the Contractor shall strictly comply with the requirements of Section 11.01 above and such claim shall be made by the Contractor before proceeding to execute any work for which a claim is made. Failure to comply with this condition precedent shall constitute a waiver by the Contractor of any claim for additional compensation; 11.05 In connection with any claim by the Contractor against the City that would result in compensation in excess of the Contract Price, any liability of the City for the Contractor's cost in this regard shall be limited to those cost categories set forth in Section 13.07 below. Section 12. SUBCONTRACTORS 12.01 Prior to execution of the Contract, the Contractor shall have identified to the City in writing, those parties required to be listed on the proposal form as subcontractors on the Project. Any changes to this list at any time shall be subject to the prior approval of the City. The City shall, in writing, state any objections the City may have to one or more of such subcontractors. The Contractor shall not enter into a subcontract with an intended subcontractor to whom the City objects. If at any time the City objects to a subcontractor, the Contractor shall solicit proposals from potential replacements and shall submit the three lowest proposals to the City, along with the Contractor's proposed choice as replacement. If the approved replacement subcontractor's cost is verified to be higher than the removed subcontractor, the excess shall be added to the Contract Price, unless the subcontractor in question has to be removed due to a default, or deficient performance. If the approved replacement subcontractor's cost is lower than the removed subcontractor, the diffeI ence shall be deducted from the Contract Price. Subcontractor markups shall be limited to those listed in Section 13.07 below. All subcontracts shall afford the Contractor rights against the subcontractor which correspond to those rights afforded to the City against the Contractor herein, including those rights of Contract termination as set forth herein below. 12.02 Each and every subcontract related to the Project is hereby assigned by the Contractor to the City, contingent upon the termination of the Contract for default or convenience as provided herein, and only as to those subcontracts which the City accepts in writing directed to the Contractor. This contingent assignment is subject to the prior rights of any surety obligated under a bond related to the Contract. This contingent assignment will operate prospectively from the effective date of assignment, and will not obligate the City to any liabilities existing on the effective date of the assignment, or arising from events, acts, failures to act, facts or circumstances existing prior to the effective date of the assignment. The contracts subject to this contingent assignment shall also be further assignable by the City, at the City's sole option. The Contractor shall bear the responsibility of notifying subcontractors of this contingent assignment and including it in all subcontracts in connection with the Project. Section 13. CHANGE ORDERS 13.01 The City Manager or the City Manager's express designee shall be the sole authorized representative of the City. Other than in matters of public safety or in time of emergency management, the Contractor shall not take direction or act upon information from any City personnel other than the City Manager's expressly authorized designee(s). 42 13.02 One or more changes to the work within the general scope of the Contract, may be ordered by Change Order. The City may also issue written directions for minor changes in the Work and may issue Construction Change Directives, as set forth below. The Contractor shall proceed with any such changes or Construction Change Directives without delay and in a diligent manner, and same shall be accomplished in strict accordance with the following terms and conditions: 13.03 Change Order shall mean a written order directed to the Contractor executed by the City after execution of the Contract, directing a change in the work. A Change Order may include a change in the Contract Price, (other than a change attributable to damages for delay as provided in Section 6 hereof), or the time for the Contractor's performance, or any combination thereof. Where there is a lack of total agreement on the terms of a Change Order or insufficient time to execute a bilateral change, the City may also direct a change in the Work in the form of a Construction Change Directive, which will set forth the change in the Work and the change, if any, in the Contract Price or time for performance, for subsequent inclusion in a Change Order; Construction Change Directives shall include a not4o-exceed preliminary price, against which the Contractor may begin billing (subject to the requirements for pay applications elsewhere herein) as the work is performed. (1) The Contractor shall furnish a price breakdown, itemized as required and within the time specified by the City, with any proposal for a contract modification. (2) The price breakdown (a) must include sufficient detail to permit an analysis of all costs for material, labor, equipment and subcontracts, and (b) must cover all work involved in the modification, whether the work was deleted, added or changed. (3) The Contractor shall provide similar price breakdowns to support any amounts claimed foI subcontracts. (4) The Contractor's proposal shall include a complete justification for any time extension proposed. 13.04 Any change in the Contract Price resulting from a Change Order shall be determined as follows: (1) By mutual agreement between the City and the Contractor as evidenced by (a) the change in the Contract Price being set forth in the Change Order, (b) such change in the Contract Price, together with any conditions or requirements relating thereto, being initialed by both parties and (c) the Contractor's execution of the Change Order; or, (2) If no mutual agreement occurs between the City and the Contractor, the change in the Contract Price, if any, shall be derived by determining the reasonable actual costs incurred or savings achieved, resulting from revisions in the work. Such reasonable actual costs or savings shall include a component for direct job site overhead and profit but shall not include home -office overhead or other indirect costs or components. The calculation of actual costs shall conform to the markup schedule in Section 13.07 below. Any such costs or savings shall be documented in the format, and with such content and detail as the City requires. The Contractor shall promptly submit such documentation and other supporting materials as the City may require in evaluating the actual costs incurred or to be incurred. 43 13.05 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the work, the Contract as thus amended, the Contract Price and the time for performance by the Contractor, regardless of the nature, amount or extent of the changes. The Contractor, by executing the Change Order, waives and forever releases any claim against the City for additional time or compensation for matters relating to, arising out of or resulting from the work included within or affected by the executed Change Order of which the Contractor knew or should have known. 13.06 The Contractor shall notify and obtain the consent and approval of the Contractor's surety with reference to all Change Orders if such notice, consent or approval are required by the City, the Contractor's surety or by law. The Contractor's execution of the Change order shall constitute the Contractor's warranty to the City that the surety has been notified of, and consents to, such Change Order and the surety shall be conclusively deemed to have been notified of such Change Order and to have expressly consented thereto. 13.07 For the purpose of Change Orders, the following definitions of terms and other restrictions apply: Contractor's or Subcontractor's Materials shall include the cost of materials, sales tax, and the cost of all transport. The cost of items listed shall be directly related to the Change Order. Indirect costs not specifically related to the Change Order shall not be considered. Contractor's or Subcontractor's Direct Labor Cost shall be limited to the hourly rate of directly involved workmen, employer contributions towards company standard benefits, pensions, unemployment or social security (if any), and employer costs for paid sick and annual leave. Contractor's or Subcontractor's Overhead shall include license fees, bond premiums, supervision, wages of timekeepers and clerks, incidentals, home and field office expense, and vehicle expense directly related to the Project, and all other direct Project expenses not included in the Contractor's materials, direct labor, and equipment costs. The allowance for Overhead and Profit shall be limited to the following schedule: 1. For the Contractor, for any work performed by the Contractor'so n forces, 10% of the Subtotal of Costs to the Contractor. 2. For the Contractor, for any work performed by his Subcontractor, 50/^ of the amount due the Subcontractor. 3. For each Subcontractor or Sub -subcontractor involved, for any work performed by their own forces, 10% of their materials and direct labor costs. 4. For each Subcontractor, for work performed by his Sub-subcontractor(s), 5% of the amount due the Sub -subcontractor. For Change Orders, the total cost or credit to the Owner shall be based on the following schedule: Contractor's Materials Cost + Contractor's Direct Labor Costs + Contractor's Equipment Costs (includes owned/rental equipment)3 + Applicable Subcontractor Costs =Subtotal of Costs to the Contractor + Contractor's Overhead and Profit =Total Cost or Credit to the Owner 13.08 Nothing Contained in this section shall be deemed to contradict or limit the terms of Section 6.05 above. Section 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK 14.01 In the event that the Contractor covers, conceals or obscures its work in violation of the Contract or in violation of an instruction from the City, such work shall be uncovered and displayed for review by the City and/or its consultants upon request, and shall be reworked at no cost in time or money to the City. 14.02 If any of the work is covered, concealed or obscured in a manner not covered by Section 14.01 above, it shall, if directed by the City, be uncovered and displayed for the City and/or its consultants. If the uncovered work conforms strictly with the Contract, the costs incurred by the Contractor to uncover and subsequently, replace such work shall be borne by the City. Otherwise, such costs shall be borne by the Contractor. 14.03 The Contractor shall, at no cost in time or money to the City, correct work rejected by the City as defective or failing to conform to the Contract. Additionally, the Contractor shall reimburse the City for all testing, review, inspections and other expenses incurred as a result thereof. 14.05 In addition to its warranty obligations set forth elsewhere in this Contract Agreement and any manufacturer's warranties provided on the Project, and in addition to other remedies provided herein or by law to the City, the Contractor shall be specifically obligated to promptly correct any and all defective or nonconforming work, whether obvious or after -discovered, for a period of 12 months following Substantial Completion upon written direction from the City. 14.06 The City may, but shall in no event be required to, choose to accept defective or nonconforming work. In such event, the Contract Price shall be reduced by the greater of (1) the reasonable costs of removing and correcting the defective or nonconforming work, or (2) the difference between the fair market value of the Project as constructed and the fair market value of the Project had it not been constructed in such a manner as to include defective or nonconforming 1 Owned Equipment For equipment owned by the Contractor, actually used in Change Order work including sales tax, or any related business entity, regardless of whether Contractor leases such equipment from the related business entity, the cost shall be the lesser of (i) the Contractor's actual ownership cost, or (ii) 85% of the applicable ownership cost listed in the most recent edition of the Contractor's Equipment Cost Guide, published by Dataquest. Third Party Rental Eauipment For equipment actually rented by the Contractor, actually used in Change Order work including sales tax, from an unrelated third party, the cost shall be the lesser of (i) the Contractor's actual rental cost, or (ii) 85% of the applicable equipment rates based on the most recent edition of the Rental Rate Bluebook for Construction published by Dataquest. A reasonable rental cost shall be allowed as determined by the City Manager or the City Manager's designee when machinery and construction equipment not so listed is required. 45 work. If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate the City for the acceptance of defective or nonconforming work, the Contractor shall, upon written demand from the City, pay the City such remaining compensation for accepting defective or nonconforming work. The Contractor shall have an opportunity to correct any defect or non- conformance prior to the City taking the above actions. The contractor, upon written notice of any defect or non-conformance, shall have 10 calendar days to make corrections, unless the City agrees that the correction will require more than 10 calendar days to correct. Section 15. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE 15.01 In addition to the City's rights under Section 8 and elsewhere in this Contract Agreement, the City shall have the right at any time to direct the Contractor to suspend its performance, or any designated part thereof when in the interests of the City. If any such suspension is directed by the City, the Contractor shall immediately comply with same. 15.02 In the event the City directs a suspension of performance under this section, through no fault of the Contractor, if the suspension is lifted other than by Termination, the City shall pay the Contractor as full compensation for such suspension the Contractor's ordinary and reasonable costs, actually incurred and paid, of: (1) demobilization and remobilization, including such justifiable costs paid to subcontractors (cost categories and markups limited to those set forth in Section 13.07 above); (2) preserving and protecting work in place; (3) approved storage of materials or equipment purchased for the Project, including insurance thereon; and (4) substantiated extended field office overhead (but no home -office overhead). 15.03 The City may order suspension of the Work in whole or in part for such time as deemed necessary because of the failure of the Contractor to comply with any of the requirements of this Contract Agreement, and the Contract Agreement's completion date shall not be extended on account of any such suspension of Work. When the City orders any suspension of the Work under this Section 15.03, the Contractor shall not be entitled to any payment for Work which the Contractor performs after notice of suspension and/or during the suspension period and shall not be entitled to any costs or damages resulting from such suspension. 15.04 The City's rights under this section shall be in addition to those contained elsewhere in the Contract or provided by law. Section 16, TERMINATION BY THE CITY The City may terminate the Contract in accordance with the following terms and conditions: 16.01 Termination for Convenience. The City may, when in the interests of the City, terminate performance under the Contract by the Contractor, in whole or in part, for the convenience of the City. The City shall give written notice of such termination to the Contractor specifying when termination becomes effective. The Contractor shall incur no further obligations in connection m with the work so terminated, other than warranties and guarantees for completed work and installed equipment, and the Contractor shall stop work when such termination becomes effective. The Contractor shall also terminate outstanding orders and subcontracts for the affected work. The Contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders. The City may direct the Contractor to assign the Contractor's right, title and interest under termination orders or subcontracts to the City or its designee. The Contractor shall transfer title and deliver to the City such completed or partially completed work and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has in its possession or control. When terminated for convenience, the Contractor shall be compensated as follows: (1) The Contractor shall submit a termination claim to the City specifying the amounts due because of the termination for convenience together with costs, pricing or other data required by the City. If the Contractor fails to file a termination claim within six months from the effective date of termination, the City shall pay the Contractor, an amount derived in accordance with subsection (3) below. (2) The owner and the Contractor may agree to the compensation, if any, due to the Contractor hereunder. (3) Absent agreement to the amount due to the Contractor, the owner shall pay the Contractor the following amounts: (a) Contract costs for labor, materials, equipment and other services accepted under the Contract; (b) Reasonable costs incurred in preparing to perform and in performing the terminated portion of the work, and in terminating the Contractor's performance, plus a fair and reasonable allowance for direct job site overhead and earned profit thereon (such profit shall not include anticipated profit or consequential damages); provided however, that if it reasonably appears that the Contractor would have not profited or would have sustained a loss if the entire Contract would have been completed, no profit shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss, if any; (c) Reasonable costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to Subsection (3)(a) above —if contingent assignment of such contracts has not been elected as provided herein —shall not include amounts paid in accordance with other provisions of the Contractor. This clause is subject to and the Contractor shall be limited by the City's rights to direct the replacement of subcontractors under Section 1101. The total sum to be paid the Contractor under this Subsection (3) shall not exceed the total Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall in no event include duplication of payment. 47 16.02 Termination for Cause. If the Contractor does not perform the work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to disobey applicable law, or otherwise commits a violation of a material provision of the Contract, then the City, in addition to any other rights it may have against the Contractor or others, may terminate the performance of the Contractor, in whole or in part at the City 's sole option, and assume possession of the Project site and of all materials and equipment at the site and may complete the work. In such case, the Contractor shall not be paid further until the work is complete. After Completion has been achieved, if any portion of the Contract Price, as it may be modified hereunder, remains after the cost to the City of completing the work, including all costs and expenses of every nature incurred, has been deducted by the City, such remainder shall belong to the Contractor. Otherwise, the Contractor shall pay and make whole the City for such cost. This obligation for payment shall survive the termination of the Contract. In the event the employment of the Contractor is terminated by the City for cause pursuant to this Section 16.02 and it is subsequently determined by a Court of competent jurisdiction that such termination was without cause, such termination shall thereupon be deemed a Termination for Convenience under Section 16.01 and the provisions of Section 16.01 shall apply. 16.03 Termination for Non -Appropriation. The City may also terminate the Contract, in whole or in part, for non -appropriation of sufficient funds to complete or partially complete the Project, regardless of the source of such funds, and such termination shall be on the terms of Section 16.01. 16.04 The City's rights under this Section shall be in addition to those contained elsewhere herein or provided by law. Section 17. INSURANCE 17.01 Contractor shall be responsible for all damage to person and or property resulting from its negligent acts, reckless or intentional misconduct, errors or omissions or those of their subcontractors, agents or employees in connection with such services and shall be responsible for all parts of its work, both temporary and permanent. 17.02 Contractor shall, at its own expense, procure and maintain throughout the term of this Contract Agreement, with insurers acceptable to City, the types and amounts of insurance conforming to the minimum requirements set forth in this Contract Agreement. Contractor shall not commence work until the required insurance is in force and evidence of insurance acceptable to City has been provided to, and approved by, City. An appropriate Certificate of Insurance shall be satisfactory evidence of insurance. Until such insurance is no longer required by the Contract, Contractor shall provide City with renewal or replacement evidence of insurance at least 30 days prior to the expiration or termination of such insurance. 17.03 Workers' Compensation/Employer's Liability Insurance Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $1,000,000 for each accident. m General Liability Insurance Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate. Automobile Liability Insurance Automobile Liability Insurance with bodily injury limits of not less than $1,00,000 for each person and not less than $1,000,000 for each accident, and with property damage limits of not less than $1,000,000 for each accident. 17.04 Contractor shall furnish insurance certificates or insurance policies at the City's request to evidence such coverages. Except for workers compensation, the insurance policies shall name the City as an additional insured, and shall contain a provision that such insurance shall not be canceled or reduced with respect to by coverages or endorsements without 30 days' prior written notice to OWNER and CONSULTANT. In such event, CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. 17.05 Compliance with these insurance requirements shall not limit the liability of Contractor. Any remedy provided to the City by any insurance maintained by the Contractor shall be in addition to and not in lieu of any other remedy (including, but not limited to, as an indemnitee of Contractor) available to the City under the Contract or otherwise. 17.06 Neither approval nor failure to disapprove insurance furnished by Contractor shall relieve Contractor from responsibility to provide insurance as required by this Contract Agreement. 17.07 Contractor shall deliver to City the required certificate(s) of insurance and endorsements) before City signs this Contract Agreement. 17.08 Contractor's failure to obtain, pay for, or maintain any required insurance shall constitute a material breach upon which City may immediately terminate or suspend this Contract Agreement. In the event of any termination or suspension, City may use the services of another consultant or consultants, without City's incurring any liability to Contractor. 17.09 At its sole discretion, City may obtain or renew Contractor insurance, and City may pay all or part of the premiums. Upon demand, Contractor shall repay CITY all monies paid to obtain or renew the insurance. City may offset the cost of the premium against any monies due Contractor from City. 17.10 The Contractor shall furnish to the City Certificates of Insurance allowing thirty (30) days notice for any change, cancellation, or non -renewal. Such Certificates shall contain the following wording: "SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN." If the insurance policies expire during the terms of the Contract, a renewal certificate or binder shall be filed with the City at least 30 days prior to the renewal date. L�!7 17.11 In addition to the coverages required herein, the Contractor shall furnish and maintain all-risk builder's risk property insurance, satisfactory to the City, upon the entire Work at the site to the full replacement cost of the completed project. This coverage shall name City as an additional insured, must include the interests of the Contractor, subcontractors and sub -subcontractors in the Work, and must be procured from an insurer licensed to do business in the State of Texas with a Best's rating of "A+, A, A.". The policy must insure against perils including, but not limited to, earthquake, fire, extended coverages, windstorm, lightning, flood, and physical loss or damage, including theft, vandalism and malicious mischief. Section 18. PERFORMANCE AND PAYMENT BONDS; SURETY BONDS 18.01 Contractor shall provide City with a Performance Bond, a Payment Bond, and a Maintenance Bond meeting the standards specified in the Contract Documents, on the forms provided by the City, and attached hereto, with a Power of Attorney Affidavit, each in an amount not less than the Contract price. 18.02 Sureties' qualifications. All bonds, to the extent required under the Contract, including, but not by way of limitation, any Bid/Proposal Bond, Performance Bond, Payment bond, or Maintenance Bond shall be written through a reputable and responsible surety bond agency licensed to do business in the State of Texas and with a surety which holds a certificate of authority authorizing it to write surety bonds in Texas and maintains a current certificate of authority as an acceptable surety on Federal Bonds in accordance with U.S. Department of Treasury Circular 570. However, if the amount of the bond exceeds the underwriting limitations set forth in the Circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the Circular and the excess risk must be protected by co-insurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (3) CFR Section 223.10 - Section 223.111 and the surety company shall provide the City with evidence satisfactory to the City, that such excess risk has been protected in an acceptable manner. 18.03 Additional or replacement bond. It is further mutually agreed between the parties hereto that if, at any time, the City shall deem the surety or sureties upon any bond to be unsatisfactory, or if, for any reason, such bond (because of increases in the work or otherwise) ceases to be adequate, the Contractor shall, at its expense within five days after the receipt of notice from the City so to do, furnish an additional or replacement bond or bonds in such form, amount, and with such surety or sureties as shall be satisfactory to the City. In such event, no further payments to the Contractor shall be deemed to be due under the Contract until such new or additional security for the faithful performance of the work shall be furnished in manner and form satisfactory to the City. 18.04 As applicable to all bonds required under the Contract, the surety company shall have a Texas agent whose name shall be listed in the prescribed space on the forms provided by the City for all bonds required by the City, or otherwise listed therein if the form of the Bond is not prescribed by the City. 50 Section 19. PROJECT RECORDS All documents relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Contractor, or any subcontractor of the Contractor, shall be made available to the City and/or its consultants for inspection and copying upon written request by the City. Furthermore, said documents shall be made available, upon request by the City, to any state, federal or other regulatory authority and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all drawings, plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Said records expressly include those documents reflecting the cost of construction to the Contractor. The Contractor shall maintain and protect these documents for not less than three years after completion of the Project, or for any longer period of time as may be required by law or good construction practice. The Contractor further agrees to include these provisions in any subcontracts issued by him in connection with this Contract Agreement. Section 20. APPLICABLE LAW The laws of the State of Texas shall govern this Contract Agreement. In any litigation arising under this Contract Agreement, the parties agree to a waiver of the right to a trial before a jury, and all such litigation shall be litigated only in a non -jury hearing in Collin County, Texas. Section 21. SUCCESSORS AND ASSIGNS Each party binds itself, its successors, assigns, executors, administrators or other representatives to the other party hereto and to successors, assigns, executors, administrators or other representatives of such other party in connection with all terms and conditions of the Contract. The Contractor shall not assign the Contract without prior written consent of the City. Section 22. MISCELLANEOUS PROVISIONS 22.01 Construction Permits. The City hereby agrees to waive the charge for aCity-issued building permit for this Project. However, the Contractor is responsible for obtaining all permits or fees otherwise required of the Contractor by the Contract Documents, or permits and fees customarily the responsibility of the Contractor. 22.02 Compliance By Contractor: Nondiscrimination. Contractor shall comply with all Federal, State and local laws, ordinances, rules and regulations of any authorities throughout the duration of the Contract. The Contractor shall be responsible for compliance with any such law, ordinance, rule or regulation and shall hold City harmless and indemnify same in the event of non- compliance. Contractor further agrees to abide by the requirements under Federal Executive Order Number 11246, as amended, including specifically the provisions of the equal opportunity clause. 22.03 State and Local Taxes. Except as otherwise provided, contract prices shall include all applicable state and local taxes. Contractor shall indemnify and hold harmless the City for any loss, cost or expense incurred by, levied upon or billed to the City as a result of Contractor's failure to pay any tax of any type due in connection with this Contract Agreement. Contractor shall ensure that the above sections are included in all subcontracts and sub -subcontracts, and shall ensure withholding on out of state sub and sub -subcontractors to which withholding is applicable. 51 22.04 Any and all notices required to be sent under the Contract or otherwise shall be sent to the following: If to the City: City of Anna Attn: City Manager 111 North Powell Parkway P.O. Box 776 Anna, Texas 79406 If to the Contractor: Section 23. ENTIRE AGREEMENT Aside from duly authorized Change Orders, any modification to this Contract Agreement must be supported by an additional, articulated consideration, and must either be in writing, executed by the parties hereto, or, if made orally, should be confirmed in writing, which writing should state the consideration which supports the modification. Failure to confirm an oral modification in writing shall constitute a waiver of any claim for additional compensation with regard to the oral modification. Nothing in this Section shall be construed to limit the City's authority to issue changes set forth in Section 14 herein. Section 24. SEVERABILITY If any term or condition of the Contract or the application thereof to any persons) or circumstances is held invalid, this invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition, or application. To this end, the terms and conditions of the Contract are agreed to be severable. Section 25. WAIVER Waiver of any breach of any term or condition of this contract shall not be deemed a waiver of any prior or subsequent breach, and shall not entitle any party hereto to any subsequent waiver of any terms hereunder. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 52 IN WITNESS WHEREOF, the Parties have executed this Contract Agreement under their respective seals on the day and year first written above. CITY OF ANNA, TEXAS Philip Sanders, City Manager ATTEST: Natha Wilkison, City Secretary (SEAL) (Contractor) BY: (name and title of authorized representative) ATTEST: SECRETARY (SEAL) 53 NJ 5JR• KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)), as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) (an amount equal to five percent of the Total Bid Price, including Cash Allowances and Alternate Bids, if any) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted on or about this day a proposal offering to perform the following project: Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. NOW, THEREFORE, if the said Principal's bid as stated in its proposal is accepted by the City, and said Principal executes and returns to the City the number of original counterparts of the Contract Agreement required by the City, on the forms prepared by the City, for the work described herein and also executes and returns the same number of the Performance, Payment and Maintenance Bonds (such bonds to be executed by a Corporate Surety authorized by the State Board of Insurance to conduct insurance business in the State of Texas, and having an underwriting limitation in at least the amount of the bond) in connection with the work described herein, within the time specified, then this obligation shall become null and void; otherwise it is to remain in full force and effect. In the event that the Principal is unable to or fails to perform the obligations undertaken herein, the undersigned Principal and Surety shall be liable to the City for the full amount of this obligation which is hereby acknowledged as the amount of damages which will be suffered by the City on account of the failure of such Principal to perform such obligations, the actual amount of such damages being difficult to ascertain. Notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle, with proper postage affixed (certified mail, return receipt requested), addressed to the respective other party at the address prescribed in the Contract Documents, or at such other address as the receiving party may hereafter prescribe by written notice to the sending party. 54 IN WITNESS WHEREOF, the said Principals) and Surety(s) have signed and sealed this instrument this day of , 2012. Surety Y� (Title) PRINT NAME: Principal By: (Title) By: ADDRESS: (Title) PHONE/FAX: By: (Title) The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety By: PRINT NAME: ADDRESS: PHONE/FAX: 55 N • KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)), as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Obligee, dated project: Principal the has entered into day a certain written Contract Agreement with the of for the following Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. and said Principal under the law is required before commencing the work provided for in said Contract Agreement to execute a bond in the amount of said Contract Agreement, which Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform the work in accordance with the plans, specifications and contract documents, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code (Article 5472d for Private Work)4 of the Revised Civil Statutes of Texas as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work to be performed thereunder. a Not applicable for federal work. See "The Miller Act," 40 U.S.C. S270. 56 IN WITNESS WHEREOF, the said Principals) and Surety(s) this instrument this Surety (Title) PRINT NAME ADDRESS: PHONE/FAX: day of , 2012. Principal By: (Title) By: (Title) By: (Title) have signed and sealed The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety By: PRINT NAME: ADDRESS: PHONE/FAX: 57 PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)) as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written Contract Agreement with the Obligee, dated the day of , for the: Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. and said Principal under the law is required before commencing work provided for in said Contract Agreement to execute a bond in the amount of said Contract Agreement, which Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said Contract Agreement, then this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work to be performed thereunder. ti�3 IN WITNESS WHEREOF, the said Principals) and Surety(s) have signed and sealed this instrument this day of , 2012. Surety By: (Title) PRINT NAME: ADDRESS: PHONE/FAX: Principal By: (Title) By: (Title) By: (Title) The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety By: PRINT NAME: ADDRESS: PHONE/FAX: MAINTENANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT as PRINCIPAL, and a CORPORATION organized under the laws of as SURETIES, do hereby expressly acknowledge themselves to be held and bound to pay unto the City of Anna, a municipal corporation at Anna, Collin County, Texas the sum of: Dollars ($ ) for the payment which sum well and truly to be made until said City of Anna and its successors, said PRINCIPAL AND SURETIES do hereby bind themselves, their assigns and successors jointly and severally. THIS obligation is conditioned, however, that whereas said the Contractor, did on 2012 enter into a written Contract Agreement with the said City of Anna to build and construct: Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. in the City of Anna, Texas which Contract Agreement and the Plans and Specifications therein mentioned adopted by the City of Anna, are hereby expressly made a part hereof as though the same were written and embodied herein. WHEREAS, under the Plans and Specifications, and Contract Agreement, it is provided that the CONTRACTOR will maintain and keep in good repair the work herein contracted to be done and performed for a period of two (2) years from the date of acceptance; it being understood that the purpose of this section is to cover all defective material, work or labor performed by said CONTRACTOR, its employees, sub -contractors, materialmen and assigns. NOW THEREFORE, if the said CONTRACTOR shall keep and perform its said agreement to maintain said work and keep the same in repair for the said maintenance period of two (2) years, as provided, then these presents shall be null and void, and have no further effect, but if default shall be made by the said CONTRACTOR in the performance of its Contract Agreement to so maintain and repair said work, then these presents shall have full force and effect, and said CITY OF ANNA shall have and recover from said SURETY, damages in the premises, as provided, and it is further agreed that this obligation shall be a continuing one against the SURETY, hereon, and that successive recoveries may be had thereon for successive breaches until the full amount shall have been exhausted; and it is further understood that the obligation herein to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. IN WITNESS WHEREOF, the said (Contractor) has caused these presents to be (Surety Co.) executed by its ATTORNEYdWFACT _ said ATTORNEYdWFACT thKew day %J , 2012. (Company) By: Print Name: Title: Address: Phone/Fax: (Company) By: Print Name: Title: Phone/Fax: and has hereunto set his hand the this CERTIFICATE OF INSURANCE TO: CITY OF ANNA ANNA,TEXAS THIS IS TO CERTIFY THAT wwwwj a10Sap eJ Lin ow DATE: PROJECT: (Name and Address of Insured) isI at the date of this cercate, insured operations hereinafter described, for the provisions of the standard policies used by Exceptions to standard policy noted hereon. TYPE OF INSURANCE by this Company with respect to the business types of insurance and in accordance with the this Company, and further hereinafter described. Policy No. Effective Expires Limits of Liability Per Person $ Workmen's Per Occur. $ Compensation Property Damage $ Per Person $ Per Occur. $ Public Liability Property Damage $ Per Person $ Per Occur. $ Contingent Liability Property Damage $ Per Person $ Per Occur. $ Property Damage Property Damage $ Per Person $ Per Occur. $ Builder's Risk Property Damage $ Per Person $ Per Occur. $ Automobile Property Damage $ Per Person $ Per Occur. $ Other Property Damage $ The foregoing Policies (do) (do not) cover all sub -contractors. Locations Covered: Description of Operations Covered: Additional Insured: City of Anna, Texas 63 The above policies, either in the body thereof or by appropriate endorsement, provide that they may not be changed or canceled by the insurer in less than the legal time required after the insured has received written notice of such change or cancellation, or in case there is no legal requirement, in less than sixty (60) days in advance of cancellation or change. FIVE COPIES OF THIS CERTIFICATE MUST BE SENT TO THE OWNER (Name of Insurer) By: Title: _ Address: Phone/Fax: m NOTICE TO PROCEED Project: Slayter Creek Park Phase II Improvements —City of Anna, TX Issued To: Date Issued: You are hereby notified to commence work in accordance with the Agreement dated the day of 2012, on or before the day of , 2012 and complete all of the work within ninety (90) consecutive calendar days thereafter. The date of completion for all work shall therefore be the . 2012. Issued by: City of Anna, Texas (Owner) gv: Philip Sanders City Manager ACCEPTANCE OF NOTICE: Receipt of the above notice to proceed is hereby acknowledged by [insert name of contractor], this day of , 2012. By: Contractor 65 CHANGE ORDER Date of Issuance: Effective Date: Owner: City of Anna, TX Project: Slayter Creek Park Phase II Improvements Contract changes are approved as follows: Description of changes: Reason for Change Order: Attachments: CONTRACT PRICING Original Contract Amount including Add/Alternates: $ Net Increase from Previous Change Orders: $ Contract Price Prior to this Change Order: $ Net Increase/Decrease of this Change Order: $ Contract Price with All Approved Change Orders: $ City of Anna, TX By: Date: Philip Sanders, City Manager Please sign both copies; c/o Maurice Schwanke PO Box 776 Anna, TX 7540M776 return one copy to: [Insert Name of Contractor] By: [insert name of signator] Date: City of Anna, TX SUPPLEMENTARY GENERAL PROVISIONS AND TECHNICAL SPECIFICATIONS Section 1. SUPPLEMENTARY GENERAL PROVISIONS 1.01 PURPOSE OF SUPPLEMENTARY GENERAL PROVISIONS: This project shall be constructed in accordance with the current City of Anna Standard Specifications ("Standard Specifications"), which include the Standard Specifications for Public Works Construction, latest edition, and which for the purposes of this Contract Agreement also include the these Supplementary General Provisions; provided that where any discrepancies occur between the Supplementary General Provisions and the Standard Specifications, the Supplementary General Provisions shall govern. The Supplementary General Provisions are included herein for the purpose of adapting the Standard Specifications to the project which is the subject of the Contract Agreement and of adding thereto such further provisions as may be necessary to state the agreement in its entirety. 1.02 SCOPE OF WORK: A. Work is to be done in accordance with City of Anna Standard Specifications. B. The work done under the contract documents shall consist of the following: Slayter Creek Park Phase II Improvements, the project consists of the Phase II expansion to the existing Slayter Creek Park. The improvements are generally described as two new baseball fields with associated sidewalk, a new multi -purpose field with adjacent trail extension, field and lawn irrigation systems, six (6) barrier free ramps and two new concrete parking lots. C. The intent of the contract documents, including the Standard Specifications, General Provisions, Technical Provisions, and other instruments, documents, drawings, maps, etc., comprising the Plans and Specifications, is to describe a completed work to be performed by the Contractor under the Contract Agreement as an independent Contractor. D. The contractor shall furnish all labor, superintendence, machinery, equipment and all materials necessary to complete this project in accordance with contract documents. E. The Contractor will maintain at all times on the job site, a superintendent authorized to receive and fulfill instructions from the engineer. F. The Contractor further agrees that no part of the Contract Agreement shall be assigned without prior written approval from City. G. The Contractor hereby further agrees to pay to Owner as liquidated damages the sum specified herein, and quoted below, for each calendar day in excess of the time set forth in the contract documents for completion of this project. Contractor shall anticipate the following number of calendar days for precipitation type weather related delays. 7 days for January; 7 days for February; 7 days for March; 8 days for April; 9 days for May; 7 days for June; 5 days for July; 5 days for August; 7 days for September; 6 days for October; 6 days for November; and 6 days for December. These days shall be anticipated and be included as part of the progress schedule. LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE ON TIME: The time A completion is of the essence for this project. For each day that any work shall remain uncompleted after the time specified in the proposal and the Contract Agreement, or the increased time granted by the OWNER, or as equitably increased by additional work or materials ordered after the Contract Agreement is signed, the sum per day given in the following schedule, unless otherwise specified in the special provisions, shall be deducted from the monies due the CONTRACTOR: AMOUNT OF CONTRACT AMOUNT OF LIQUIDATED DAMAGES Less than $25,000.00 $100.00 Per Day $25,000 to $99,999.99 $160.00 Per Day $100,000 to $999,999.00 $240.00 Per Day More than $1,000,000.00 $500.00 Per Day The sum of money thus deducted for such delay, failure for noncompletion is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages, per day that the CONTRACTOR shall be in default after the time stipulated in the Contract Agreement for completing the work. The said amounts are fixed and agreed upon by and between OWNER and CONTRACTOR because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages which the OWNER would sustain and which shall be retained from the monies due, or that may become due, the CONTRACTOR under this Contract Agreement, and if said monies be insufficient to cover the amount owing, then the CONTRACTOR or its surety shall pay any additional amounts due. In the event that the actual damages incurred by the OWNER exceed the amount of liquidated damages, OWNER shall be entitled to recover its actual damages. 1.03 CONTRACTOR SURETY BONDS: With the execution and delivery of the Contract Agreement, the CONTRACTOR shall furnish and file with the OWNER in the amounts herein required, the surety bonds specified hereunder. Without exception, the OWNER'S bond forms, copies of which are amongst the Contract Documents and incorporated into the Contract Agreement, must be used, and exclusive venue for any lawsuit in connection with such bonds shall be in Collin County. Such surety bonds shall be in accordance with the provisions of Texas Government Code, Chapter 2253, as amended, and Art. 7.19-1 of the Insurance Code, as amended. These bonds shall automatically be increased by the amount of any change order or supplemental agreement which increases the Contract Agreement price with or without notice to the surety, but in no event shall a change which reduces the Contract Agreement amount reduce the penal amount of such bonds. If the surety on any Bond furnished by the CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated or ceases to meet the requirement as set forth above, CONTRACTOR shall within 20 days thereafter substitute another Bond or surety which complies with the requirement hereto. A. PERFORMANCE BOND: A good and sufficient bond in an amount not less than 100- percent of the approximate total amount of the Contract Agreement, as evidenced by the proposal tabulation, or, conditioned on the faithful performance of the work in accordance with the plans, specifications and Contract documents, including performance of any guarantees or warranties required by OWNER, and including any extensions thereof, for the protection of the OWNER. This bond shall also provide for the repair and/or replacement of all defects due to faulty materials and workmanship that appear or become known within a period of one year from the date of completion and acceptance of the improvement by the Owner or such lesser or greater period as may be designated in the Contract Documents. B. PAYMENT BOND: A good and sufficient bond in an amount not less than 100-percent of the approximate total amount of the Contract Agreement, as evidenced by the proposed tabulation, or otherwise solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime CONTRACTOR or a subcontractor to supply public work or material. C. MAINTENANCE BOND: A maintenance bond in the amount of 100% of the total bid price shall be executed by the contractor as principal and by a corporate surety acceptable to the owner. Said bond shall secure maintenance by the contractor on the project made the subject of the Contract Agreement for two (2) years from the date of acceptance of work by the owner. D. SURETIES: No sureties shall be accepted by the OWNER who are now in default or delinquent on any bonds or who are interested in any litigation against the OWNER. All bonds shall be made on forms furnished by the OWNER, and shall be executed by not less than one corporate surety authorized to do business in the State of Texas and acceptable to the OWNER. Each bond shall be executed by the CONTRACTOR and surety. Each surety shall designate on the bond the name, address and phone number of a representative for the surety located in a county of the State of Texas acceptable to the OWNER to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. The OWNER reserves the right to reject and all sureties. E. Additional or Substitute Bonds. If at any time the OWNER is or becomes reasonably dissatisfied with any surety of a performance or payment bond, the CONTRACTOR shall, within five days after notice from the OWNER to do so, substitute an acceptable bond (or bonds), or provide any additional bond, and such form and sum and signed by such other surety or sureties as may be reasonably satisfactory to the OWNER. The premiums on such bond shall be paid by the CONTRACTOR without recourse to the OWNER. No further payments under the Contract Agreement shall be deemed due or payable until the substitute or additional bonds have been furnished to and accepted by the OWNER. 1.04 LIMITATION OF LIABILITY, INDEMNIFICATION AND INSURANCE: A. LIMITATION OF LIABILITY: The CONTRACTOR affirmatively represents that he is skilled and experienced in the use and interpretation of drawings and specifications such as those included in the Bid Documents of this Contract Agreement. Further, he also affirmatively represents that he has carefully reviewed the drawings and specifications of this Contract Agreement and that he has based his Bid solely on these documents, not relying in any way on any explanation or interpretation —oral or written —from any other source. Unless the CONTRACTOR shall give written notice to the design professional of any ambiguities contained in the drawings or specifications prior to the submission of his bid, the CONTRACTOR agrees that he shall be conclusively presumed that the CONTRACTOR has exercised his aforementioned skill and experience and found the drawings and specifications sufficient and free from ambiguities, errors, or omissions for the purpose of determining his Contract Bid Price for the performance of the work in conformity with the drawings and specifications. Submission of a Bid without prior written notice to the OWNER'S Agent or any claimed ambiguities, errors or omissions shall constitute a waiver of any and all bid -price -related claims by the CONTRACTOR that are based upon any alleged ambiguities, errors, omissions or the like in the drawings or specifications. B. INDEMNIFICATION: The CONTRACTOR agrees to indemnify, defend and save harmless the OWNER and the Engineer, their consultants, agents and employees from and against all loss or expense (including costs and attorney fees) by reason of liability imposed by law upon the OWNER, Engineer, consultants, agents and employees for damages including bodily injury, including death and property damage, including loss of use, sustained by any person or persons, arising out of or in consequence of the performance of this work, whether such iniuries to person or damage to property is due or claimed to be due to the negligence of the CONTRACTOR, his sub -contractors, the OWNER, the Engineer, their consultants, agents and employees, except only such injury or damage as shall have been occasioned by the sole negligence of the OWNER, Engineer, Consultant, and/or other Agents. C. INSURANCE: The CONTRACTOR shall comply with each and every condition contained herein. The CONTRACTOR shall provide and maintain, at his sole cost and expense, until the work covered in the Contract Agreement is completed and accepted by the City of Anna, the minimum insurance coverage as follows. 1. Commercial general liability insurance at minimum combined single limits of $1,000,000 per -occurrence per -project and $2,000,000 general aggregate project for for bodily injury and property damage, which coverage shall include products/completed operations ($1,000,000 products/completed operations aggregate), and XCU hazards. Coverage for products/completed operations must be maintained for at least two (2) years after the construction work is completed. Coverage must be maintained to cover the contractor's obligations outlined in the Contract Agreement. 70 2. Definitions: a) 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. b) 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. c) The contractor shall 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 employees of the contractor providing services on the project, for the duration of the project. d) The contractor must provide a certificate of coverage to the governmental entity prior to being awarded the Contract Agreement. e) 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. f) 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. g) The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. 71 h) 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, or any change that materially affects the provision of coverage of any person providing services on the project. i) The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, information all persons providing services on the project that they are required to be offered, and stating how a person may verify coverage and report lack of coverage. j) 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. k) By signing the Contract Agreement 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. VA I) The contractor's failure to comply with any of these provisions is a breach of Contract Agreement by the contractor which entities the governmental entity to declare the Contract Agreement void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. 3. Comprehensive Automobile and Truck Liability Insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000.00 per occurrence; or separate limits of $500,000.00 for bodily injury (per person); $500,000.00 for bodily injury (per accident) and $100,000.00 for property damage. Such insurance shall include coverage for loading and unloading hazards. 4. Payment and performance bonds in the amount of the contract price and on the form as provided in the contract documents. PLEASE NOTE: The required limits may be satisfied by any combination of primary, excess, or umbrella liability insurances, provided the primary policy complies with the above requirements and the excess umbrella is following form. The contractor may maintain reasonable and customary deductibles, subject to approval by the City of Anna. A comprehensive general liability insurance form may be used in lieu of a commercial general liability insurance form. In this event, coverage must be written on an occurrence basis, at limits of $1,000,000 per -occurrence, combined single limit, and coverage must include a broad form comprehensive general liability endorsement, coverage for products/completed operations, no restrictions on XCU hazards, and broad form contractual liability covering the obligations included in the Contract Agreement. With reference to the foregoing insurance requirement, Contractor shall specifically endorse applicable insurance policies as follows: a. The City of Anna shall be named as an additional insured with respect to general liability and automobile liability. b. All liability policies shall contain cross liability and severability of interest clauses. c. A waiver of subrogation in favor of the City of Anna shall be contained in the workers' compensation insurance policy. d. All insurance policies shall be endorsed to require the insurer to immediately notify the City of Anna of any material change in the insurance coverage. e. All insurance policies shall be endorsed to the effect that the City of Anna will receive at least sixty (60) days notice prior to cancellation of termination of the insurance. All insurance shall be purchased from an insurance company that meets the following requirements: r�� a. A financial rating of AN or better as assigned by the BEST Rating Company in the most current edition of its manual. b. Licensed and admitted to do business in the State of Texas. All insurance must be written on forms filed with and approved by the Texas State Board of Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and shall contain provisions representing and warranting the following: a. The company is licensed and admitted to do business in the State of Texas. b. The insurances set forth by the insurance company are underwritten on forms which have been approved by the Texas State Board of Insurance. c. Sets forth all endorsements and insurance coverages according to requirements and instructions contained herein. d. Shall specifically set forth the notice of cancellation or termination provisions to the City of Anna. Upon request, contractor shall furnish the City of Anna with certified copies of all insurance policies. 1.05 ADDENDUM: The owner reserves the right to issue an addendum prior to accepting bids for the work. Such addendum(s) shall be, and are hereby made a part of these specifications. Upon receipt of the addendum(s), the Contractor shall acknowledge their receipt by listing the addendum(s) and signing in the appropriate spaces in the Proposal. 1.06 CONSTRUCTION WATER: Construction water necessary for the normal construction of this project will not be provided free to the Contractor. All construction water will be metered by City owned meters or meter(s) owned by the Contractor. A deposit of two hundred fifty dollars ($250.00) is required for a 2 Y2 inch City owned construction meter. The deposit(s) shall be paid at the Utility Office, located at 101 North Powell Parkway, Anna, Texas 75409, prior to the use of meter. City owned meter(s) will be installed by the City Utility Department, after the deposit has been made. The meter(s) will be read and billed each month in accordance with the current Customer Services Policy. Any damage that occurs to a City meter during use will be repaired by the City at the expense of the Contractor. The cost of the repairs will be deducted from the deposit and the remaining deposit returned to the Contractor. This procedure will be followed wherever construction water is needed. No exceptions to the rule will be sanctioned. If the meter is set on a fire hydrant, a valve shall be provided so that the flow of the water is not controlled by the operating nut on the fire hydrant. Where water is necessary only to settle dust on the street, at the request of the property owners, the Project Engineer or Project Inspector will notify the Contractor. The necessary application of water for dust shall be considered subsidiary to the other bid items listed in the Proposal and Bid Form of the Contract Agreement. 1.07 DETOURS AND BARRICADES: The Contractor shall, before closing any street or causing any obstruction to traffic on any street, furnish and erect suitable barricades and warning signs to protect the traveling public. 74 The barricades and warning signs will be constructed, placed, and adequately maintained as directed by the Project Engineer. All barricades and warning signs shall conform to and be set in accordance with the Texas Manual on Uniform Traffic Control Devices (TMUTCD) No direct compensation will be made to the Contractor for furnishing, installing, and maintaining barricades and warning signs and their subsequent removal. This is to be considered subsidiary to the several items for which unit prices are requested in the PROPOSAL. 1.08 TRENCH SAFETY: On all trenching in excess of five feet below existing grade, the Contractor shall comply with the standards promulgated by the Occupational Safety and Health Administration (OSHA), of the United States Government, regulating excavations, trenching and shoring. Contractors shall refer to and abide by all OSHA regulations published in 29 CFR 1926, et seq., July 1989 edition, and any revisions thereto published in the Federal Register which may become effective during the period of construction. The contractor's attention is directed to the separate Bid Item for trench safety systems, based on the linear feet of trench excavated, under which full payment will be made for trench safety systems, including any additional excavation and back fill required; sheeting, and bracing; for dewatering or diversion of water; for all jacking and jack removal; and for all other labor, materials, tools, equipment, acquisition of soils information and design of trench safety systems, and incidentals necessary to complete the work. Changes made in the trench safety system after the initiation of construction will not be cause for extension of time, claims for delay or approval of change orders. It is the sole duty, responsibility and prerogative of the Contractor, not the Owner or Engineer, to perform all trenching in a safe manner and in accordance with OSHA regulations. Any apparent unsafe trenching conditions observed by Owner, Engineer, or their representatives on the site, shall be reported to OSHA as well as to Contractor's job superintendent. Work stoppages or corrective actions required of contractor by OSHA shall not be cause for extension of time, claims for delay or approval of change orders. The Contractor shall indemnify and hold harmless the City, its employees and agents, from any and all damages, costs (including, without limitation, legal fees, court costs, and the cost of investigation), judgments or claims by anyone for injury or death of persons resulting from the collapse or failure of trenches constructed under the Contract Agreement. The Contractor acknowledges and agrees that this indemnity provision provides indemnity for the City in case the City is negligent either by act or omission in providing for trench safety, including, but not limited to inspections, failure to issue stop work orders and the hiring of the Contractor. 1.09 PRICE FOR MATERIALS AND STATE SALES TAX: After award of the Contract Agreement, the City of Anna will, on written request of the Contractor, furnish the Contractor with a certificate of exemption from Texas Limited Sales, Excise, and Use Tax in an amount not exceeding the above mentioned bid price for materials and other tangible personal property as stated in the request form. Such written request must contain a statement to the effect that such materials or property have been or will be utilized in the performance of the Contract Agreement to the full extent of the amount for which a certificate of exemption is requested. 75 1.10 ACCESS TO PRIVATE PROPERTIES: The Contractor will put all private drives in an accessible condition to allow residents ingress and egress before leaving the job site for an extended period of time except during the pouring and curing of drive approaches. "Extended period of time" is defined as overnight, weekends, holidays, or periods of inclement weather. The Contractor will leave with the PROJECT ENGINEER the phone numbers of responsible persons available twenty-four (24) hours a day to handle emergencies concerning egress and ingress. If a vehicle becomes stranded due to an inaccessible condition, any legitimate claims arising from such conditions shall be the sole responsibility of the Contractor. If such claims are not settled prior to the monthly pay estimate, they shall be deducted from that estimate. 1.11 USE OF PRIVATE PROPERTY: The Contractor shall not at any time use private property to park or turn around construction vehicles or store equipment and/or materials without the written permission of the property owner involved. The Contractor shall not at any time use water metered by meters set for the property owners use without written permission of the property owner. 1.12 PROTECTION OF ADJOINING PROPERTY: The Contractor shall be responsible for the protection of all fences, trees, and other improvements on the property adjoining the construction sites from damage by the Contractor's equipment and men. 1.13 PROTECTION OF EXISTING UTILITIES: The Contractor shall make every effort to protect existing utilities. Telephone, gas, and electric lines occur within the construction limits of this project and should be avoided during construction. 1.14 CLEANUP: It is the intent of the Contract Agreement to ensure that an adequate cleanup job be performed by the Contractor as soon during the construction procedure as possible. Before the project is accepted by the City, all rocks, stones, and other construction debris shall be removed to the satisfaction of the Engineer. All necessary cleanup work shall be considered subsidiary to the various bid items on the Contract Agreement, 1.15 GOVERNING DOCUMENTS: The work shall conform to the requirements of these speccations and the details as shown on the drawings. These contract documents are intended to be complementary. Requirements of any of the contract documents are as binding as if called for by all. In the event of conflict between the Contract Agreement and any other contract documents, the Contract Agreement shall govern. In the event of conflict between the drawings and the specifications, the project engineer's interpretation of the drawings shall have priority. In case of conflict between the referenced specifications and the project specifications, the project specifications shall govern. 1.16 SCHEDULE: The Contractor shall of the proposed work upon request. provide the project engineer with a schedule 1.17 MONTHLY ESTIMATE: Monthly estimates shall be processed as specified by the North Central Texas Council of Governments Standard Specifications for PUBLIC Works Construction, Item 109.5. 1.18 SAFETY: Safety precaution work. As appropriate, workman shall be gloves, and any other safety apparel possibility of accidents. shall be used at all times during progress of the furnished with hard hats, safety shoes, protective that the Contractor determines will reduce the The Contractor shall be solely responsible for ensuring the safety of its crew(s)I employees and subcontractors, along with the safety of the public, as the work required by these contract documents is performed. 1.19 STOCKPILE/EQUIPMENT AREAS: It shall be the responsibility of the Contractor to secure stockpile areas and equipment storage areas. 1.20 BOUND COPY OF CONTRACT DOCUMENTS: Bidder understands and agrees that the Contract Agreement to be executed by offeror/bidder shall be bound and include the documents set forth as such in the Contract Agreement. 1.21 DRUG -FREE WORKPLACE POLICY: It is the Owner's policy to maintain adrug- free workplace. The Contractor agrees to implement during the progress of this Contract Agreement a drug -free workplace policy. The policy shall include the following provisions: A. Contractor shall have adrug-free workplace policy; B. Contractor shall have a drug awareness program; C. Contractor shall require all employees to receive a copy of the drug -free workplace policy; D. Contractor shall notify Owner of any employee conviction arising from drug use; E. Contractor shall make a "good faith" effort to continue to maintain a drug -free workplace. 1.22 TEXAS STATE SALES TAX: The Contract Agreement is issued by an organization which quaes for exemption provisions pursuant to provisions of Article 20.04 of the Texas Limited Sales, Excise and Use Tax Act. The Contractor must obtain a limited sales, excise and use tax permit which shall enable him to buy the materials to be incorporated into the work without paying the tax at the time of purchase. 1.23 LABOR AND WORKING HOURS: Attention of each bidder is particularly called to the schedule of general prevailing rate of per diem wages included in these contract documents. The wage rate which must be paid on this project shall not be less than specified in the schedule of general prevailing rates of per diem wages as above mentioned. The bidder's attention is further directed to the requirements of Article 5159a, Vernon's Annotated Civil Statutes, providing for the payment of the wage schedules above mentioned and the Bidder's obligations thereunder. The inclusion of the schedule of general prevailing rate of per diem wages in these contract documents does not release the Contractor from compliance with any wage law that may be applicable. Construction work under the Contract Agreement requiring an inspector will not be performed on weekends or holidays unless the following conditions exist: A. The project being constructed is essential to the City of Anna's ability to provide the necessary service to its citizens. B. Delays in construction are due to factors outside the control of the Contractor. The Contractor is approaching the time when the liquidated damages provisions of the Contract Agreement become applicable and Contractor can show he has made diligent effort to complete the project within the allotted time. Standard working hours are Monday through Friday, 8:00 a.m. - 5:00 p.m., not including the following holidays: New Year's Day, Dr. Martin Luther King's Birthday, Good Friday, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Friday after Thanksgiving, Christmas Eve, and Christmas Day. Any of these holidays falling within a weekend may be designated to a Monday or Friday at the discretion of the City. Before construction work requiring an inspector is to be performed on weekends or holidays, the Contractor must notify the Engineer not less than three (3) full working days prior to the weekend or holiday he desires to do work and obtain written permission from the Engineer to do such work. The final decision on whether to allow construction work requiring an inspector on weekends or holidays will be made by the Engineer. In any event, if a condition should occur or arise at the site of this project or from the work being done under this contract which is hazardous or dangerous to property or life, the Contractor shall immediately commence work, regardless of the day of the week or the time of day, to correct or alleviate such condition so that it is no longer dangerous to property to life. 1.24 TWO-YEAR MAINTENANCE BOND: Prior to final acceptance the Contractor shall furnish the City of Anna a maintenance bond to guarantee against defects in the construction or equipment furnished for the project for two years following acceptance. The bond shall be executed by a surety company holding a license to do business in the State of Texas and acceptable to the City of Anna, in an amount equal to one hundred (100) percent of the Contract Agreement. 1.25 AMERICAN DISABILITIES ACT: "Any person, firm business, partnership, or corporation that provides a service or function to the public or employees, agents or officials of the city of which is performed on behalf of the City of Anna, shall comply with 42 U.S.C. 1210-12213 and any amendments thereto, known as the "American Disabilities Act of 1990 " 1.26 USE OF SUBCONTRACTORS: Upon award of bid, Contractor shall provide City with a list of all possible subcontractors the Contractor may use for the project. City reserves the right to exclude any subcontractor from the project that it reasonably deems unacceptable for the project. The City shall notify contractor in writing of its intent to exclude any subcontractor. 1.27 RIGHT TO SHUT DOWN: The City, through its owner representative or otherwise, reserves the right to shut down the project. �c3 1.28 UNCONTROLLABLE CIRCUMSTANCES: In the event a Party hereto cannot fully perform its obligations hereunder due to the intervention of an "Uncontrollable Circumstance", as that term is defined below, then, providing such Party has fully complied with the provisions of this section, such Party shall be excused from such performance but only to the extent and only in the manner set forth herein. For the purposes of this Agreement an Uncontrollable Circumstance shall mean: A. With respect to the Contractor: 1. An Act of God in the form of an unusually severe storm, or flood, or fire or similar event, that could not have been anticipated or guarded against which materially affects the work site, including access or egress thereto; 2. A riot or war situation actually involving the site or actually preventing the Contractor from working on the site, but not including any situations involving suppliers off -site other than those essential suppliers set forth in Exhibit A*; 3. An unanticipated strike involving the forces actually working on the project or involving the employees of those essential suppliers set forth in Exhibit A*, but no other labor stoppage. * Contractor must set forth essential suppliers in an Exhibit A within five (5) business days of award of final contract. Provided however, that no such claimed Uncontrollable Circumstance shall be deemed an Uncontrollable Circumstance for the purposes of this Agreement unless such event actually and directly necessitated a delay in the work around the delays resulting from such Uncontrollable Circumstance. B. With respect to the Owner, an Uncontrollable Circumstance shall mean: 1. The inability to deliver the Site to the Contractor as scheduled due to the intervention of a third Party such as a Court or an agency of a higher level of government. 2. The inability of the Owner to perform its oversight, review and approval functions due to the actual strike of its employees or those of its essential consultants employed for such purpose, but only for such reasonable period of time as might actually be required to replace such forces. In the event either Party is he victim of an Uncontrollable Circumstance as that term is defined above, such Party shall put the other on written notice as soon as practicably possible. Such notice shall specify the Uncontrollable Circumstance and the anticipated affect it will have on that Party's abilities to perform its obligations under the Contract Agreement. As soon thereafter as is practical, but in any event within ten (10) days of such Uncontrollable Circumstance, the affected Party shall provide the other Party, in writing, with its plan to deal with the affects of such Uncontrollable Circumstance and with its proposed amendments to all affected schedules necessarily resulting therefrom. 79 1.29 CONSTRUCTION SUPERVISION: The Contractor will, at all times, maintain one project superintendent per project who will provide the following functions. He/she will be on site when and where construction activity occurs. He/she will maintain communication with all subcontractors and contractor employees performing construction activities. He/she will be available 24 hours a day, for the duration of the project, for emergency calls concerning events at project sites. He/she will accept no additional responsibility from the Contractor which would inhibit the performance of the above stated functions. In the event that the project consists of multiple sites, the project superintendent will identify to the Owner a responsive person at each site with construction activity. The project superintendent will maintain communication with that responsible person during all construction activity. In this even, the project superintendent will not be identified as a responsible person for any given site. If the Owner determines that the performance of the above functions is not being maintained at any time, the Owner reserves the right to shut down the project, at the contractor's expense, until performance of said functions is restored. 1.30 CONFINED SPACE POLICY: CONTRACTOR will be responsible for the establishment and coordination of and required compliance with a Confined Space Entry Program as required by federal law and City ordinance and shall inform the OWNER of said program. CONTRACTOR will obtain any available information regarding permit space hazards from the OWNER and will coordinate all entry operations with the OWNER. CONTRACTOR shall provide, install, operate, and maintain such monitoring, ventilation, and personal protective equipment to provide access to any and all confined space as required by Contractor's Confined Space Entry Program. Said equipment shall meet or exceed the requirements of the Occupational Safety and Health Act (OSHA), federal, state, and local authorities. CONTRACTOR shall provide labor, equipment, and materials necessary to place, operate, and maintain the said equipment as necessary for entrance into confined spaces by the CONTRACTOR or OWNER. At no time shall work be done by the CONTRACTOR within confined spaces without providing said equipment. Payment for this item shall be subsidiary to all other pay items. 1.31 TEMPORARY SUSPENSION OF WORK: CONTRACTOR may from time to time be required by OWNER to temporarily suspend project operations in one area and to commence or continue project operations in another area. OWNER may make such requirement for any reason which OWNER deems reasonable and/or necessary, including but not limited to as a result of a court order, failure by the OWNER to secure the necessary easements, right of way, or permits required, conflicts between existing or contemplated utilities and the work, and Acts of God. Such requirement may be oral or may be in writing. In the event that the CONTRACTOR is delayed for sixty (60) or less days as a result of any temporary suspension as described above, CONTRACTOR shall not be entitled to nor shall such delay serve as the basis as a claim for additional compensation to CONTRACTOR or damages for mobilization, re -mobilization, or any other damages sustained or alleged to have been sustained by CONTRACTOR. m 1.32 FINAL COMPLETION AND ACCEPTANCE: Within ten (10) days after the CONTRACTOR has given the Engineer written notice that the work has been completed, or substantially completed, the Engineer and the OWNER shall inspect the work and within said time, if the work be found to be completed or substantially completed in accordance with the Contract Documents, the Engineer shall issue to the OWNER and the CONTRACTOR his Certificate of Acceptance of the work to the CONTRACTOR or to advise the CONTRACTOR in writing of the reason for non -acceptance. 1.33 FINAL PAYMENT: Upon the issuance of the Certificate of Completion, the Engineer shall proceed to make final measurements and prepare final statement of the value of all work performed and materials furnished under the terms of the Agreement and shall certify same to the OWNER, who shall pay to the CONTRACTOR on or after the 30th day, and before the 35th day, after the date of the Certificate of Completion, the balance due the CONTRACTOR under the terms of this Agreement, provided he has fully performed his contractual obligations under the terms of the Contract Agreement; and said payment shall become due in any event upon said performance by the CONTRACTOR. Neither the Certificate of Acceptance nor the final payment, nor any provision in the Contract Documents, shall relieve the CONTRACTOR of the obligation for fulfillment of any warranty which may be required. 1.34 PAYMENTS WITHHELD: The OWNER may, on account of subsequently discovered evidence, withhold or nullify the whole or part of any certificate to such extent as may be necessary to protect himself from loss on account of: (a) Defective work not remedied. (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the CONTRACTOR to make payments properly to subcontractors or for material or labor. (d) Damage to another contractor. (e) Reasonable doubt that the work can be completed for the unpaid balance of the Contract Agreement amount. (f) Reasonable indication that the work will not be completed within the contract time. When the above grounds are removed or the CONTRACTOR provides a Surety Bond satisfactory to the OWNER, which will protect the OWNER in the amount withheld, payment shall be made for amounts withheld because of them. Section 2. TECHNICAL SPECIFICATIONS 2.01 PURPOSE OF TECHNICAL SPECIFICATIONS: This project shall be constructed in accordance with the current City of Anna Standard Specifications ("Standard Specifications"), which include the Standard Specifications for Public Works Construction, latest edition, and which for the purposes of this Contract Agreement also include the the Supplementary General Provisions and these Technical Specifications; provided that where any discrepancies occur between the Technical Specifications, the Supplementary General Provisions and/or the Standard Specifications, these Technical Specifications shall govern. The Technical Specifications are included herein for the purpose of adapting the 81 Supplementary General Provisions to the project which is the subject of the Contract Agreement and of adding thereto such further provisions as may be necessary to state the agreement in its entirety. 2.02 HOT MIX ASPHALTIC CONCRETE PAVEMENT SURFACE COURSE: All HMAC pavement surface course and base course shall be provided in accordance with North Central Texas Council of Governments Public Works Construction Standards 2004 or later. The Contractor shall furnish job mix design (JMF) and material certification prior to any work. Contractor shall be responsible throughout project for quality control of material in accordance with design and North Central Texas Council of Governments Public Works Construction Standards 2004 or later. The job mix formula can be adjusted as long as it does not exceed the Master Grading Limits as specified in North Central Texas Council of Governments Public Works Construction Standards 2004 or later. 2.03 LEVEL -UP COURSE: Where directed by the Engineer, a first course, or leveling -up course, shall be laid to bring the street surface to a uniform grade or section. Contractor will use a grade 30 felt to cover appurtenance prior to levekup. This course may be bladed into place and rolled. The material for the levekup will be fine graded asphaltic concrete surface coarse (Type "D"), and will be paid for at the contract unit price. At the completion of the levekup coarse, the street will be swept by a mechanical broom and all loose material will be removed. Contractor shall provide plant mix design and material certification prior to any work. 2.04 ADJUSTMENTS TO EXPOSED UTILITY APPURTENANCES: Any water, sanitary sewer or storm sewer appurtenances encountered by the Contractor during construction will be adjusted by the Contractor to conform to the finished surface of the street. Contractor will take every care in the recovery of previously unlocated appurtenances. The Contractor must keep all sanitary or storm sewers clear of dirt or debris resulting from any construction operations. The Contractor is fully responsible for all damage and loss to utility appurtenances and facilities caused by his operations. Care must be exercised at all times to avoid damage or interruption of service. In the event that the Contractor, having taken every care for the recovery of previously unlocated appurtenances, damages a previously unlocated City owned appurtenance, the City will provide the cast replacement materials needed for the adjustment to be completed. Adjustments to any appurtenance must be done in a manner which is, and with materials that are, acceptable to the owner. See attached drawings for information on the adjustment of City of Anna Utility appurtenances. It is the intention of the City that all adjustments of utility -owned facilities be completed in advance of placement of the new asphaltic concrete surfaces. Adjustment of City owned appurtenances shall be done following resurfacing. The Contractor will endeavor to reuse existing castings, covers or other material parts. Extension rings will not be acceptable. The Contractor shall use Grade 30 Felt Paper to cover the appurtenance prior to Construction/Improvements. m upon Completion of asphalt resurfacing, the Contractor will mark all appurtenances with permanent type paint on the new surface for easy location. Adjustments will be made no more than five (5) at a time. When five (5) appurtenances have been exposed for adjustment, the Contractor will have three (3) days to complete said adjustments. Clean-up will be completed before the next five (5) appurtenances can be started. This is required in addition to Section 12-13 of General Technical Provisions. Payment for appurtenance adjustments will be included in monthly partial payments as the work is completed. This does not relieve the Contractor from the responsibility for making final corrections as may become necessary before the contract is accepted for final payment. The contract unit price for each item will be full compensation for removal and salvage of the existing appurtenance, for all required cleaning before reinstallation, for all cutting or rebuilding necessary to match the finished grade of the paving, for replacement of all damaged or lost parts, for new parts which may be necessary to match the height of the proposed surface, for protecting facilities to assure continuous and uninterrupted service, for the asphaltic concrete patching to protect traffic, and of all material, labor, and equipment costs to satisfactorily complete the adjustments in accordance with these specifications and to the satisfaction of the Engineer. Contracted price for adjustment of any utility appurtenances will not be subject to renegotiations due to underrun of contract quantity. 2.05 PROJECT SIGNS: The Contractor on this project shall provide and erect up to two (2) project signs as required. Generally, project sign shall be located at the beginning and end of the project street sections and on major intersecting streets. Locations of signs will be as indicated by the Owner's representative. The sign shall be substantially in accordance with the drawing enclosed as part of these specifications. Construction shall be on 3/4" weatherproof (marine) plywood and the painting shall be accomplished with good quality paint which will not weather or fade excessively during life of contract. Sign colors shall be as indicated or equivalent color values as provided by other manufacturers. Signs shall be placed in prominent locations and maintained in good condition until the completion of the project. Damaged or defaced signs will be repaired within two working days at the Contractor's expense. The cost of the sign(s) shall be considered subsidiary to the unit prices bid on this project, unless otherwise noted. Signs shall become the property of the City of Anna after completion of the project. 2.06 POSTING SIGNS: The Contractor is the Public Works Director's authorized designee to post notice of street improvement. The following stipulations will apply: A. 48 hours prior to the commencement of each phase of construction/improvements, i.e. base repair, level up, milling, or resurfacing is scheduled to start, the contractor will place "NO PARKING" signs at locations where plainly visible to all on -street parking areas and in sufficient number that m the message can be read from any parking space, approximately 75 to 100 feet apart. Signs must be placed at the ends of each project street sections where they can be clearly seen by approaching traffic. B. "NO PARKING" signs must be used notifying persons that it is unlawful to park vehicles in the street, specifying the location, time, and dates, and a failure to observe this restriction will result in towing and/or penalty according to Ordinance No. 90-182. No separate or additional pay will be made for complying with the requirements of this special provision. No phase of construction/improvement may start until posting of signs is complete. 2.07 REMOVAL OF VEHICLES: The Contractor will be responsible for removal of vehicles which obstruct each phase of construction/improvement. The Engineer recommends that the Contractor engages the services of an off -duty police officer whenever private vehicles are to be towed. The Contractor must assume all responsibility for moving vehicles and handle all claims which may arise. No separate or additional pay will be made for complying with the requirements of this special provision. 2.08 TRAFFIC MOVEMENTS AND SCHEDULE OF OPERATIONS: Construction/improvements shall be scheduled to produce a minimum of interference to the movement of traffic. All streets are to remain open and usable to traffic during work operations by maintaining a minimum of one lane clear obstructions. The Contractor will provide flagmen as required to control traffic through the site. When not in use, equipment and machinery shall be removed from the street and out of the flow of traffic. Contractor shall provide (1) flagperson per intersection during all liming operations to stop all vehicular and pedestrian traffic from entering project area until work is completed. If any street is required to be closed on Saturday or Sunday, any legal city holiday, or on weekdays between the hours of 5:00 p.m. and 8:00 a.m., permission must be obtained in advance from the Engineer and all proper entities must be notified by the Contractor. Traffic control and street name signs shall not be torn down, covered or otherwise removed from the clear view of the driver or pedestrian. Restricted work hours and limited operations may be required on other thoroughfares and collector streets as directed by the Engineer. Nighttime, weekend and holiday work at any location requires specific approval in advance by the Engineer. 2.09 ADVANCE NOTICE OF CONSTRUCTION OPERATIONS: The Contractor will be required to distribute advance notices of proposed construction/improvements. These notices will be furnished by the City and will take the form of door -hangers. They must be distributed 48 hours in advance of scheduled operations and will be hand delivered and placed in an obvious location at each separate building or dwelling on the street. They will not be placed in mail boxes. No phase of construction/improvement may start until advance notices have been distributed. m THE CONTRACTOR WILL BE REQUIRED AND IS RESPONSIBLE TO PUBLISH IN THE MCKINNEY COURIER GAZETTE 48 HOURS IN ADVANCE ANY SCHEDULED OPERATIONS OF STREETS THAT WILL HAVE CONSTRUCTION/ IMPROVEMENTS, A COPY OF THE NEWSPAPER ARTICLE WITH THE PUBLISHED STREETS WILL BE FURNISHED TO THE ENGINEER ON REQUEST. THE COST WILL BE PAID BY THE CONTRACTOR. The Contractor will be expected to make every diligent effort to prevent parking of vehicles on the street which may conflict with his construction operations. No additional compensation will be paid for this item but the cost shall be included in such pay items as are provided in the proposal. 2.10 PAYMENT OF TESTING: Testing of Materials -Samples of materials for testing shall be taken by, and at the discretion of the City. The initial testing of any sample material shall be made at the expense of the City. In the event the initial testing does not comply with the specifications, all subsequent testing to determine acceptability of the same or replacement material, will be conducted by the City secured laboratory at the Contractor's expense. All additional coring or concrete breaks must be done on or before the twenty- eighth (28) day after the material is placed. 2.11 VEGETATION MANAGEMENT: Construction Methods - It shall be the Contractor's responsibility to blade all grass out of the roadway area. All deleterious material shall be removed before spraying. The affected area shall be sprayed with Round Up (41 %) herbicide, a product of the Monsantos Corporation or equal. The edge of the streets and other areas will be sprayed for at least a three (3) foot width or as directed by the Engineer. Herbicide will be sprayed before the asphalt is installed. The City of Anna will not be responsible for losses or damage resulting from the use of this product in any manner not specifically recommended by PBI/Gordon. The Contractor assumes all risks associated with such non -recommended use. 2.12 UNCLASSIFIED EXCAVATION: A. Description - Prior to the actual surface treatment, it will be the Contractor's responsibility to grade areas on or adjacent to the roadways to ensure adequate surface drainage as directed by the Engineer. B. Measurement and Payment - There will be no additional compensation for this work. It will be subsidiary to all other pay items, unless otherwise noted. 2.13 REINFORCED PORTLAND CEMENT CONCRETE PAYMENTS: All Reinforced Portland Cement Concrete Pavements shall be provided in accordance with TXDOT ITEM 360. 2.14 LIME STABILIZATION GENERAL INFORMATION: This item will cover the treatment of existing pavement and subgrade combined to be used as subgrade by pulverizing, adding lime, mixing and compacting material. Prior to any treatment processes A existing utility appurtenances shall be exposed and plainly marked. The existing pavement and subgrade material shall be cut and pulverized to a depth of 6" minimum. The material shall be cut and pulverized until a uniform grading of material is present and 85 approved by the City. Contractor shall furnish type "C" Quicklime Grade "DS" at a rate of 30 LBS/SY. The application and mixing of lime may be accomplished by either "Dry Placing" or "Slurry Placing". The material and lime shall be thoroughly mixed and brought to the proper moisture content as determined by the City. The material shall then be compacted and sealed over to cure for a period of three (3) days. After this curing process is complete, material shall be remixed until a uniform grading is acquired and approved by the City. During remixing water shall be added as directed by the City and as soon as proper material grading is achieved, compaction process shall begin. Compaction shall continue until the entire depth of material is uniformly compacted to a density of 95 percent as determine by test method TEX-113-E and moisture is -2 to +3 of optimum moisture content. After compaction, material shall be finished to the lines and grades as required by the City and finish rolled with a pneumatic tire roller. The material shall then be treated with a prime coat at a rate of .10 to .20 gallons per square yard as determined by the engineer. During this process material shall be protected from traffic until prime coat has cured. Material shall be covered with Hot Mix Asphaltic Pavement as soon as possible, but no longer than seven (7) calendar days. If material is not covered within required time limit, subgrade will be inspected by the City to determine if the contractor will be required to rework the entire section. 2.15 CEMENT STABILIZATION GENERAL INFORMATION: All Cement Stabilization shall be provided in accordance with TXDOT ITEM 275. 2.16 FLEXIBLE BASE GENERAL INFORMATION: All Flexible Base shall be provided in accordance with TXDOT ITEM 247. 2.17 ASPHALT ANTISTRIPPING AGENT: A. Description. This item shall govern for furnishing and blending an antistripping agent into the asphalt for use in asphaltic concrete pavement mixtures or asphalt stabilized base mixtures when designated on the plans and as directed by the Engineer. B. Materials. The anti -stripping agent shall be a uniform liquid at 77°F. It shall show no significant loss in effectiveness when the asphalt -agent blend is held for three days at 350° F. The anti -stripping agent shall be evaluated in laboratory mixtures with the materials and design proposed for use. Unless otherwise indicated in the plans, the mix shall be evaluated using Test Method Tex-531-C and must evidence a minimum tensile strength ratio of 0.70. The Test Method Tex-531-C Mixing and Molding procedures are amended for material provided under the Special Specification Item, "Hot Mix -Cold Laid Asphaltic Concrete Pavement" by mixing the design aggregates and the asphalt -primer blend (no water) at 200° plus or minus 5° F, cooling at room temperature for 2.5 hours, curing mix a minimum of 15 hours at 140° F or until constant weight is attained, heating the mix specifications at 100° plus or minus 5° F for two hours, and molding at 1000 plus or minus 5° F. Plant mixes may be tested by the modified procedure starting with the curing step. The amount of agent used shall be 0.5 to 1.0 percent by weight of the design asphalt, and the actual amount shall be determined based on the results of the evaluation. m If plans notes indicate that the mix is to be evaluated using Test Method Tex-530-C, the following shall apply for the material provided under the Special Specification Item, "Hot Mix -Cold Laid Asphaltic Concrete Pavement". The Tex-530-C mixing procedure is amended in that the asphalt, primer (no water) and any anti -stripping agent is blended at 200' plus or minus 5° F, aggregates and binder mixed at 200' plus or minus 5° F, and the mix cured to constant weight at 140' F prior to performing the stripping test. Plant mix may be tested by curing to constant weight and performing the stripping test. As directed by the Engineer, additional samples of the mix produced for the construction item will be obtained during the progress of the work, and tested to determine the continued effectiveness of the asphalt -agent blend. If such testing indicates failure of the mix to meet the stripping resistance required, the Engineer will halt the work until such time as the problem has been corrected by any necessary change in design, materials or mix production. Prior to delivery, a sample of the anti -stripping agent proposed for use shall be furnished to the Department for testing. The anti -stripping agent shall be delivered in unbroken containers with the manufacturer's label properly affixed, or in sealed tank trucks properly invoiced. C. Construction Materials. Handling of the anti -stripping agent shall at all times be in accordance with the manufacturer's recommendations. The agent must not evidence any separation or non - uniformity at time of use. For agents that have high viscosity normal ambient temperatures, the Contractor shall provide a suitable means of warming the material to a proper consistency for blending with the asphalt. The agent shall be added to the asphalt at the rate determined in accordance with subsection B., above, by means of an incline metering device just prior to introduction of the asphalt into the mixing plant. The equipment used must be approved by the Engineer. The Contractor will be required to demonstrate that the equipment is properly calibrated. Unless otherwise shown on the plans, a control section of asphaltic -concrete pavement containing no antistripping agent shall be placed. This control section shall be placed at the location and of the length shown on the plans. D. Measurement and Payment Work performed and materials furnished as prescribed by this Item will not be measured nor paid for directly, but shall be considered subsidiary to the governing specifications for the items of construction in which these materials are used. 2.18 SURFACE AND EDGE MILLING: The existing surface on designated streets will be milled to the depths and dimensions directed by the Engineer. It is not the intention to mill the original concrete base of the street, but concrete patches or other obstructions protruding above the original base and into the surface specified for removal will be milled to conform to the desired section. Variations in depth of milling operations shall not exceed 3/8 inch in the finished surface prior to resurfacing. Surface milling and edge milling will be to depths as shown on the enclosed sketches. Milling round radii of intersections will be required where directed by the Engineer. 87 Normal milling operations shall be conducted to the edge of all manholes, valves and other appurtenances encountered. If the milling machine can not accomplish this, then milling with hand tools or by other methods shall be employed. No separate compensation will be paid for any milling adjacent to appurtenances that is done with hand tools or by other methods. The milling machine shall self -load the milled material onto an adjacent hauling unit. Water or other approved liquid shall be sprayed on the material being milled to eliminate dust during the milling operation. Brooming and/or sweeping to remove any loose material not removed by the machine shall be conducted immediately behind the machine in an approved manner to the satisfaction of the Engineer. All milled surfaces shall be cleaned, inspected, measured, and approved before the application of the tack coat or asphaltic concrete mixture. Normal operations will require complete cleanup before the Contractor is allowed to leave the job. The Contractor will not be permitted to mill any street more than one week in advance of scheduled resurfacing. Lighted barricades will be placed around all exposed surface protrusions the same day they are exposed. Failure to observe these constraints may result in shutting down the work until they are satisfied. Surface milling will be measure for payment in square yards of surface milled regardless of the number of passes required to provide the specific section for SURFACE MILLING and in linear feet for EDGE MILLING. The contract unit prices shall be the total compensation for milling the surface, removal and disposal of the milled material, cleaning the milled area, and for all labor, equipment, and incidentals necessary to complete the work in accordance with this provision, the specifications and the attached details. These items will be bid on the basis that all milled material will be hauled and disposed of at the location designated by the Engineer for use by the City. The unit prices for SURFACE MILLING and EDGE MILLING will not be subject to renegotiation due to under -run of Contract quantities. 2.19 MATERIALS AND EQUIPMENT: The Contractor shall be free to secure the approved materials, equipment and articles from sources of his own selection. However, if the Owner finds that the work shall be delayed or adversely affected in any way because a selected source of supply cannot furnish a uniform product in sufficient quantity and at the time required and a suitable source does exist, or the product is not suitable for the work, the Owner shall have the right to require the original source of supply changed by the Contractor. The Contractor shall have no claim for extra cost or damage because of this requirement. The Contractor warrants to the Owner that all materials and equipment furnished under this Contract Agreement shall be new unless otherwise specified in the contract documents; and that same shall be of good quality and workmanship, free from faults and defects and in conformance with the contract documents. All materials and equipment not conforming to these requirements, including substitutions and not properly approved and authorized, may be considered defective, and shall be promptly repaired or replaced by the Contractor at the Contractor's sole cost upon demand of the Owner. If required by the Owner, the Contractor shall furnish evidence as to the kind and quality of materials and equipment. E�� 2.20 WORKMANSHIP: The Contractor shall furnish the Owner with every reasonable facility for ascertaining whether or not the work performed was in accordance with the requirements and intent of the plans and specifications. Any work done (except excavation) or materials used without suitable inspection by the Owner may be ordered removed and replaced at the Contractor's expense. The Contractor shall promptly correct or replace all work rejected by the Owner as defective or as failing to conform to the contract documents whether observed before or after substantial completion and whether or not fabricated, installed or completed. The Contractor shall bear all costs of correcting such rejected work, including costs incurred for additional services necessary thereby. 2.21 REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK: All work which has been rejected or condemned shall be repaired, or if it cannot be repaired satisfactorily, it shall be removed and replaced at the Contractor's expense. Defective materials shall be immediately removed from the site of the work. Upon failure of the Contractor to repair satisfactorily or to remove and replace, if so directed, rejected, unauthorized or condemned work or materials, immediately after receiving notice to the Owner, the Owner shall, after giving written notice to the Contractor, have the authority to cause defective work to be remedied or removed and replaced, or to cause unauthorized work to be removed and to deduct the cost thereof from any monies due or to become due the Contractor. Alternatively, the Owner may, at its option, declare the Contractor in default, in which event the performance bond surety shall complete the contract. SECTION 31 00 00 EARTHWORK PART 1 -GENERAL 1.1 RELATED DOCUMENTS A. Geotechnical Report: Perform earthwork complying with the requirements of Geotechnical Report for the site. B. Codes and Standards: Perform earthwork complying with requirements of authorities with jurisdiction. C. Existing Utilities: Do not interrupt existing utilities serving facilities occupied by the Owner or others except when permitted in writing by the Engineer and then only after acceptable temporary utility services have been provided. D. Limits of this section: This section shall include earthwork on site outside of building pad areas. Refer to structural section for building pad requirements. E. Reference Specification for earthwork and related products shall be the "Standard Specifications for Public Works Improvements", latest edition as published by the North Central Texas Council of Governments. (NCTCOG) F. Per Landscape Architect, only backfill landscape area to a point 0.4 feet or 5 inches below the proposed finish grade. Refer to Landscape Plans and Specifications for further instructions. PART 2 -PRODUCTS 2.1 SOIL MATERIALS A. Provide approved borrow soil materials from off site when sufficient approved soil materials are not available from excavations. B. Import any additional top soil that may be required to achieve the final grades shown in the plans. 2.2 SATISFACTORY SOIL MATERIALS A. ASTM D 2487 soil classification groups GW, GP, GM, SW, SP, and SM; free of rock or gravel larger than 2 inches in any dimension, debris, waste, frozen materials, vegetation, or other deleterious matter. 2.3 UNSATISFACTORY SOIL MATERIALS A. ASTM D 2487 soil classification groups GC, SC, ML, MH, CL, CH, OL, OH, and PT. PART 3 -EXECUTION 3.1 PREPARATION A. Protect structures, utilities, sidewalks, pavements, and other facilities from damage caused by settlement, lateral movement, undermining, washout, and other hazards created by earthwork operations. B. Provide erosion and sedimentation control measures. C. Prevent surface water and subsurface or groundwater from entering excavations, from ponding on prepared subgrades, and from flooding project site and surrounding area. D. Protect subgrades and foundation soils from softening and damage by rain or water accumulation and from freezing temperatures or frost. 3.2 EXPLOSIVES A. Do not use explosives. 3.3 UNCLASSIFIED EXCAVATION A. Excavation is unclassified and includes excavation to required subgrade elevations regardless of character of materials and obstructions encountered. Slayter Creek Park Phase II Earthwork Anna, Texas 31 00 00-1 August 23, 2012 3.4 COMPACTION A. Place backfill and fill materials in layers not more than 8 inches in loose depth for material compacted by heavy compaction equipment, and not more than 4 inches in loose depth for material compacted by hand -operated tampers. Place evenly alongside structures and utilities to required elevations. B. Compact soil to not less than the following percentages of maximum dry density according to ASTM D 698: 1. Under lawn or unpaved areas, compact the top 6 inches below subgrade and each layer of backfill or fill material to 90 percent. 2. Under walkways and pavement, compact the top 6 inches below subgrade and each layer of backfill or fill material to 95 percent. END OF SECTION 31 00 00 Slayter Creek Park Phase II Earthwork Anna, Texas 31 00 00-2 August 23, 2012 SECTION 31 10 00 SITE CLEARING PART 1 -GENERAL 1.1 RELATED DOCUMENTS A. Drawings, specifications and general provisions of Contract, including General and Supplementary Conditions and Division 1 Specification sections, apply to work of this section. It is the responsibility of the Contractor and all subcontractors to locate information pertaining to required items of work specified or indicated elsewhere in the Contract Documents, 1.2 SUMMARY A. Protection of existing trees indicated to remain. B. Removal of trees and other vegetation. C. Topsoil stripping. D. Clearing and grubbing. E. Removing above -grade improvements. F. Removing below -grade improvements. 1.3 PROJECT CONDITIONS A. Traffic: Conduct site -clearing operations to ensure minimum interference with roads, streets, walks, and other adjacent occupied or used facilities. Do not close or obstruct streets, walks, or other occupied or used facilities without permission from authorities having jurisdiction. Provide barricading in accordance with local and state requirements. B. Protection of Existing Improvements: Provide protections necessary to prevent damage to existing improvements indicated to remain in place. 1. Protect improvements on adjoining properties and on Owner's property. 2. Restore damaged improvements to their original condition, as acceptable to property owners. C. Protection of Existing Trees and Vegetation: Protect existing trees and other vegetation indicated to remain in place against unnecessary cutting, breaking or skinning of roots, skinning or bruising of bark, smothering of trees by stockpiling construction materials or excavated materials within drip line, excess foot or vehicular traffic, or parking of vehicles within drip line. Provide temporary guards to protect trees and vegetation to be left standing. 1. Water trees and other vegetation to remain within limits of contract work as required to maintain their health during course of construction operations. 2. Provide protection for roots over 1-1/2 inch in diameter that are cut during construction operations. Coat cut faces with an emulsified asphalt or other acceptable coating formulated to use on damaged plant tissues. Temporarily cover exposed roots with wet burlap to prevent roots from drying out; cover with earth as soon as possible. 3. Repair or replace trees and vegetation indicated to remain that are damaged by construction operations in a manner acceptable to Architect. Employ a licensed arborist to repair damage to trees and shrubs. D. Improvements on Adjoining Property: Authority for performing removal and alteration work on property adjoining Owner's property will be obtained by Owner prior to award of contract. 1. Extent of work on adjacent property is indicated on Drawings. E. Salvable Improvements: Carefully remove items indicated to be salvaged and store on Owner's premises where indicated or directed. 1.4 EXISTING SERVICES A. Indicated locations are approximate; determine exact locations before commencing Work. B. Arrange and pay for disconnecting, removing, capping, and plugging utility services. Notify affected utility companies in advance and obtain approval before starting this Work. C. Place markers to indicate location of disconnected services. Identify service lines and capping locations on Project Record Documents. Slayter Creek Park Phase II Site Clearing Anna, Texas 31 10 00-1 August 23, 2012 PART 2 - PRODUCTS (Not Applicable) PART 3 -EXECUTION 3.1 SITE CLEARING A. Remove trees, shrubs, grass, and other vegetation, improvements, or obstructions, as required, to permit installation of new construction. Remove similar items elsewhere on site or premises as specifically indicated. Removal includes digging out and off -site disposal of stumps and roots. 1. Cut minor roots and branches of trees indicated to remain in a clean and careful manner where such roots and branches obstruct installation of new construction. B. Topsoil is defined as friable clay loam surface soil found in a depth of not less than 4 inches. Satisfactory topsoil is reasonably free of subsoil, clay lumps, stones, and other objects over 2 inches in diameter, and without weeds, roots, and other objectionable material. 1. Strip topsoil to whatever depths encountered in a manner to prevent intermingling with underlying subsoil or other objectionable material. Remove heavy growths of grass from areas before stripping. a. Where existing trees are indicated to remain, leave existing topsoil in place within drip lines to prevent damage to root system. 2. Stockpile topsoil in storage piles in areas indicated or directed. Construct storage piles to provide free drainage of surface water. Cover storage piles, if required, to prevent wind erosion. 3. Dispose of unsuitable or excess topsoil as specified for disposal of waste material. C. Clearing and Grubbing: Clear site of trees, shrubs, and other vegetation, except for those indicated to be left standing. 1. Completely remove stumps, roots, and other debris protruding through ground surface. 2. Use only hand methods for grubbing inside drip line of trees indicated to remain. 3. Fill depressions caused by clearing and grubbing operations with satisfactory soil material, unless further excavation or earthwork is indicated. a. Place fill material in horizontal layers not exceeding 6 inches loose depth, and thoroughly compact each layer to a density equal to adjacent original ground. D. Removal of Improvements: Remove existing above -grade and below -grade improvements as indicated and as necessary to facilitate new construction. 1. Abandonment or removal of certain underground pipe or conduits may be indicated on mechanical or electrical drawings and is included under work of related Division 15 and 16 Sections. Removing abandoned underground piping or conduits interfering with construction is included under this Section. 3.2 DISPOSAL OF WASTE MATERIALS A. Burning on Owner's Property: Burning is not permitted on Owner's property. B. Removal to Owners Spoil Area: Transport waste materials and unsuitable topsoil materials to designated spoil areas on Owner's property and dispose of as directed. C. Removal from Owner's Property: Remove waste materials and unsuitable or excess topsoil from Owner's property. END OF SECTION 31 10 00 Slayter Creek Park Phase II Site Clearing Anna, Texas 31 10 00-1 August 23, 2012 SECTION 31 23 00 EXCAVATION AND FILL PART 1 -GENERAL 1.1 GEOTECHNICAL REPORT A. Perform earthwork complying with the requirements of Geotechnical Report for the site. 1.2 CODES AND STANDARDS A. Perform earthwork complying with requirements of authorities with jurisdiction. 1.3 EXISTING UTILITIES A. Do not interrupt existing utilities serving facilities occupied by the Owner or others except when permitted in writing by the Engineer and then only after acceptable temporary utility services have been provided. 1.4 LIMITS OF THIS SECTION A. This section shall include earthwork on site outside of building pad areas. Refer to structural section for building pad requirements. B. Reference Specification for earthwork and related products shall be the "Standard Specifications for Public Works Improvements", latest edition as published by the North Central Texas Council of Governments. (NCTCOG) PART 2 -PRODUCTS 2.1 SOIL MATERIALS A. Provide approved borrow soil materials from off site when sufficient approved soil materials are not available from excavations. 2.2 SATISFACTORY SOIL MATERIALS A. ASTM D 2487 soil classification groups GW, GP, GM, SW, SP, and SM; free of rock or gravel larger than 2 inches in any dimension, debris, waste, frozen materials, vegetation, or other deleterious matter. 2.3 UNSATISFACTORY SOIL MATERIALS A. ASTM D 2487 soil classification groups GC, SC, ML, MH, CL, CH, OL, OH, and PT. PART 3 -EXECUTIONS 3.1 PREPARATION A. Protect structures, utilities, sidewalks, pavements, and other facilities from damage caused by settlement, lateral movement, undermining, washout, and other hazards created by earthwork operations. B. Provide erosion and sedimentation control measures. C. Prevent surface water and subsurface or groundwater from entering excavations, from ponding on prepared subgrades, and from flooding Project site and surrounding area. D. Protect subgrades and foundation soils from softening and damage by rain or water accumulation and from freezing temperatures or frost. 3.2 EXPLOSIVES A. Do not use explosives. 3.3 UNCLASSIFIED EXCAVATION A. Excavation is unclassified and includes excavation to required subgrade elevations regardless of character of materials and obstructions encountered. Slayter Creek Park Phase II Excavation and Fill Anna, Texas 31 23 00-1 August 23, 201212 3.4 COMPACTION A. Place backfill and fill materials in layers not more than 8 inches in loose depth for material compacted by heavy compaction equipment, and not more than 4 inches in loose depth for material compacted by hand -operated tampers. Place evenly alongside structures and utilities to required elevations. B. Compact soil to not less than the following percentages of maximum dry density according to ASTM D 698: 1. Under lawn or unpaved areas, compact the top 6 inches below subgrade and each layer of backfill or fill material to 90 percent. 2. Under walkways and pavement, compact the top 6 inches below subgrade and each layer of backfill or fill material to 95 percent. END OF SECTION 31 23 00 Slayter Creek Park Phase II Excavation and Fill Anna, Texas 31 23 00-1 August 23, 201212 SECTION 31 25 00 EROSION AND SEDIMENTATION CONTROLS PART 1 -GENERAL l .l . This section will consist of the completion and implementation of a storm water pollution prevention plan (SWPPP). PART 2 -PRODUCTS 2.1. The contractor will be provided with a package outlining contractor requirements regarding the SWPPP. In addition, reference is made to the SWPPP construction plan prepared for this project. PART 3 -EXECUTION 3.1. The contractor will construction of all inspection forms. Slayter Creek Park Phase II Anna, Texas be responsible for execution and implementation of the SWPPP, including required erosion control features, reporting to TCEQ and completion of END OF SECTION 31 25 00 Erosion and Sedimentation Controls 31 23 00-1 August 23, 201212 SECTION 31 32 13.17 LIME TREATED BASE COURSES 1.1 DESCRIPTION A. This item shall consist of treating subgrade, subbase, and base courses by the pulverization, addition of lime, mixing and compacting the mixed material to the required density. This item applies to natural ground, embankment, or pulverized recycled asphalt pavement base or subbase courses placed under this contract, which shall be constructed as specified herein and in conformity with the typical section, lines and grades as shown on the plans. 1.2 BASE SPECIFICATION A. Reference Specification for lime treatment and related products shall be the "Standard Specifications for Public Works Improvements", latest edition as published by the North Central Texas Council of Governments. (NCTCOG). PART 2 -PRODUCTS 2.1 MATERIALS A. Lime shall meet NCTCOG Item 301.2. Lime slurryshall be Grade 2, B. Percentages and thickness shall be as shown on the plans. C. Lime shall be placed in accordance with NCTCOG Item 301.2 D. Compaction and moisture content shall be as shown on the plans. END OF SECTION 31 32 13.19 Slayter Creek Park Phase II Lime Treated Base Courses Anna, Texas 31 23 00-1 August 23, 201212 SECTION 32 13 13 PORTLAND CEMENT CONCRETE PAVING 1.1 RELATED DOCUMENTS A. Extent of portland cement concrete paving is shown on drawings, including curbs, gutters, walks, and paving. Be Prepared subbase is specified in "Earthwork" section. C. Concrete and related materials are specified below. D. Joint fillers and sealers are as specified on the Plans. E. Traffic Control: Maintain access for vehicular and pedestrian traffic as required for other construction activities. Provide barricading as required by Manual of Uniform Traffic Control Devices, latest edition, as published by the Texas Department of Transportation. F. Reference Specification for concrete and related products shall be the "Standard Specifications for Public Works Improvements", latest edition as published by the North Central Texas Council of Governments. (NCTCOG) PART 2 -PRODUCTS 2.1 MATERIALS A. Concrete Materials: Comply with requirements of NCTCOG Item 303.2 for concrete materials, admixtures, bonding materials, curing materials, and others as required. All concrete, unless noted, shall be Class "A". Be Antispalling Compound: Boiled linseed oil and mineral spirits, complying with AASHTO M-233. C. Curing and Sealing Compound: ASTM C 309, Type 2, Class Be D. Concrete Mix, Design, and Testing: Comply with requirements of applicable NCTCOG sections for concrete mix design, sampling and testing, and quality control and as herein specified. E. Paint Striping: Paint for pavement striping shall conform to NCTCOG Item 804.2 color as shown on plans. F. Use of fly ash shall comply with requirements of NCTCOG Item 303.2.4, local requirements, and shall be approved by Engineer. PART 3 -EXECUTION 3.1 PREPARATION A. Place concrete in accordance with NCTCOG Item 303.5. Be Joints: Construct expansion, sawed dummy and construction joints true to line with face perpendicular to surface of concrete. Construct transverse joints at right angles to centerline unless otherwise indicated. Spacing shall be as shown on the plans. C. Pavement strength and thickness testing shall be per NCTCOG Item 303.7. D. Place suitable warning signs near work site to alert approaching traffic from all directions to prevent damage to newly painted surfaces. E. Stencil "FIRE LANE - NO PARKING" at size, color and spacing as shown on the plans. F. Stencil "HANDICAPPED PARKING SPACE" in 4" high white block letters on blue colored background 6" high and of appropriate length for lettering background and provide wheelchair logo in parking stall. 1. Handicap parking space marking and signage shall comply with state and city requirements. END OF SECTION 32 13 13 Slayter Creek Park Phase II Portland Cement Concrete Paving Anna, Texas 31 23 00-1 August 23, 201212 SECTION 33 10 00 WATER UTILITIES l .l RELATED DOCUMENTS A. Reference Specification for water systems and related products shall be the "Standard Specifications for Public Works Improvements", latest edition as published by the North Central Texas Council of Governments. (NCTCOG) Be Comply with NFPA 24 "Standard for the Installation of Private Fire Service Mains and Their Appurtenances." C. Utility Compliance: Comply with local utility regulations and standards pertaining to sanitary sewerage. PART 2 -PRODUCTS 2.1 MATERIALS A. Water mains and appurtenances shall meet requirements shown on plans and in conformance with local requirements. Pipe shall meet requirements of NCTCOG Item 501.14. Be System Performance Requirements: Except where otherwise indicated, the following are minimum pressure requirements for water system piping. Co Underground Piping: 150 psig (1035 kPa). D. Underground Piping, Downstream of Fire Department Connections: 200 psig (1380 Pa). E. Fire Hydrants, fittings, meters and valves shall be in conformance with local requirements. PART 3 -EXECUTION 3.1 PREPARATION A. Barricading shall be in conformance with "Manual on Uniform Traffic Control Devices", latest edition, as published by the Federal Highway Administration. Be Installation shall be in conformance with local requirements and NCTCOG Item 506. C. Testing: Perform testing of completed piping in accordance with local authorities having jurisdiction. END OF SECTION 33 10 00 Slayter Creek Park Phase II Water Utilities Anna, Texas 31 23 00-1 August 23, 201212 SECTION 32 17 23.33 PLASTIC PAVEMENT MARKINGS PART 1 -GENERAL This specification is for preformed retroreflective thermoplastic pavement marking materials. The materials can be adhered to asphalt, concrete and Portland Cement Concrete pavements by means of heat fusion. 1.1 MATERIALS A. The preformed retroreflective marking material shall consist of a resilient polymer thermoplastic with uniformly distributed glass beads throughout its entire cross section. B. The preformed retroreflective markings shall be fusible to asphalt and Portland Cement Concrete pavements by means of the normal heat of a propane type of torch. Adhesives, primers or sealers are not necessary prior to the preformed retroreflective markings application on asphalt and Portland Cement Concrete pavements. C. The preformed retroreflective markings shall conform to pavement contours, breaks and faults through the action of traffic at normal pavement temperatures. The markings shall have resealing characteristics and be capable of fusing to itself and previously applied worn hydrocarbon and/or alkyd thermoplastic pavement markings. D. The preformed retroreflective markings shall be capable of application on new, dense and open graded asphalt concrete wearing courses during the paving operation in accordance with the manufacturer's instructions. After application the markings shall be immediately ready for traffic. The preformed retroreflective markings shall be suitable for use for one year after the date of receipt when stored in accordance with the manufacturer's recommendations. E. The material shall be available in precut strips and appropriate colors for parking space designation, HC designation, directional indication and other uses. 1.2 SUBMITTALS The contractor will provide full specifications of the intended for the project, a b" X 6" sample, and a copy of the manufacturers warranty. 1.3 REQUIREMENTS A. The markings shall be highly durable retroreflective pliant polymer thermoplastic materials designed for transverse, longitudinal, legend and symbol markings subjected to high urban traffic volumes and particularly severe wear conditions such as repeated shear action from crossover or encroachment on typical configurations such as crosswalks, edge lines and lane lines. B. The retroreflective pliant rosin ester thermoplastic pavement markings shall consist of a homogeneous mixture of high quality polymeric thermoplastic binders, pigments, fillers and glass beads. C. To provide the required retroreflectivity, the preapplied factory top coating of glass beads shall meet or exceed AASHTO M247-81 Type 1 beads. D. The thickness of the supplied material shall have a minimum average thickness of 0.090 inch 2.28mm) (Expressed as 90 mils). E. The preformed retroreflective thermoplastic material shall have a minimum tensile strength of 150 lb. per square inch of cross section, at 0.090 (2.28 mil) thickness, when tested according to ASTM-D-638-76. F. The applied markings shall be resistant to deterioration due to exposure to sunlight, water, oil, diesel fuels, gasoline, pavement oil content, salt and adverse weather conditions. G. When properly applied, in accordance with manufacturer's instructions, the preformed retroreflective pavement markings shall be neat and durable. The markings shall remain skid resistant and show no lifting, shrinkage, tearing, roll back or other signs of poor adhesion. Slayter Creek Park Phase II Plastic Pavement Markings Anna, Texas 32 17 23.33-11 August 23, 2012 1.4 MANUFACTURERS A. The following manufacturers are acceptable: 1. Stimsonite Corporation, Niles, IL 2. Premark, flint Trading, Inc. Thomasville, NC 3. Or Equal 1.5 WARRANTY A. Any properly applied preformed retroreflective thermoplastic material that shall smear or soften independent of pavement movement within a period of one year from date of application shall be replaced by the supplier. 1.6 INSTALLATION A. The markings shall be applied in accordance with the manufacturer's recommendations on clean and dry surfaces. New Portland concrete cement surfaces must be sandblasted to entirely remove curing compound. Marking configuration shall be in accordance with the "Manual on Uniform Traffic Control Devices;" where applicable. B The preformed retroreflective thermoplastic material shall be fusible to the pavement by means of a propane torch recommended by the manufacturer. C. The supplier shall provide technical services as may be required. END OP SECTION 32 17 23.33 Slayter Creek Park Phase II Plastic Pavement Markings Anna, Texas 32 17 23.33-12 August 23, 2012 SECTION 32 18 23 BASEBALL FIELD SURFACING PART 1 -GENERAL l .l RELATED DOCUMENTS A. Drawings and general provisions of the Contract, including General and Supplementary Conditions and Division 1 Specification Sections, apply to this Section. 1.2 SUMMARY A. Section Includes: 1. Providing clay infield and infield conditioner. 2. Finished grading of infield. 3. Providing bases, home plate and pitchers plate. 4. Warranty and replacements. 1.3 REFERENCES A. The following Codes, Regulations, Reference Standards, and Specifications apply to work included in this Section. 1. Codes and regulations of the jurisdictional organizations - UIL. B. Personnel: Perform work only with qualified personnel experienced with fine grading of athletic fields and surfaces. 1.4 QUALITY ASSURANCE A. Source quality control: Furnish certificates of inspection of landscape materials, to accompany shipments, as required by governmental authorities or as requested for inspection by Owner. Comply with applicable federal, state, county and local regulations governing landscape materials. B. Qualifications: 1. Manufacturer: Company specializing in manufacturing Products specified with minimum 5 years documented experience. 2. Installer: Company specializing in performing the Work of this Section with minimum 5 years documented experience installing projects of similar size and scope. The Landscape Contractor shall furnish a list of references or previous work experience as requested by the Owner. The Landscape Contractor shall employ only skilled personnel and provide adequate supervision. 1.5 SUBMITTALS A. Provide representative quantities (1 gallon plastic bag or container each) of infield clay and infield conditioner. Samples shall be approved by Owner's Representative prior to installation. Attach product name, address of manufacturer and/or supplier and appropriate literature to each sample. Literature or Product Data shall consist of manufacturer's current specifications, with catalog cuts, data sheets and installation instructions. Samples shall be submitted no less than 60 days prior to installation. B. Product description: Provide manufacturer's product description and literature for the following: 1. Bases and anchors. 2. Home plate. 3. Pitchers' plate. C. Warranty: Submit manufacturer's warranty on products. 1.6 PROJECT CONDITIONS AND SPECIAL CONDITIONS A. Verify and examine site. Proceed when the Work site is ready. Proceed with and complete the work in a timely fashion. B. Protection: Slayter Creek Park Phase II Baseball Field Surfacing Anna, Texas 32 18 23-13 August 23, 2012 1. Protect paving, landscaping, landscape irrigation, fencing, lighting, structures and any other site improvement from damage, with protection boards, ramps, and protective sheeting. C. Utilities: 1. Determine locations of underground utilities and perform work in a manner which is intended to avoid possible damage. Hand excavate, where required, to minimize possibility of damage to underground utilities. 2. Coordinate work with Owner's Representative to prevent damage to underground sprinkler (irrigation) system. 3. Water is available on site. Refer to irrigation drawings for proposed underground irrigation system. Refer to architectural and civil drawings for other water sources. D. DISD Supervision and Approval: 1. Work of this section must be coordinated and supervised by DISD representative. Mr. Coy Frazier, Dallas ISD Grounds/Athletics, shall be the primary point of contact for DISD related to Ball Field Construction (tel: 972.925.5168, email: Cfrazier@dallasisd.org). He will participate in site visits to assist the Contractor in determining the ball field scope of work. He will review the Contractor's work for final acceptance. Also Mr. Billy Hewitt, Field Supervisor for Grounds/Athletics is available through the office number (972-925-4560). 1.7 PRODUCT DELIVERY, STORAGE, AND HANDLING A. Deliver packaged materials in sealed containers showing weight, analysis and name of manufacturer, supplier or grower. Protect materials from deterioration during delivery and while stored at the site. B. Storage: Store products with protection from weather or other conditions which would damage or impair the effectiveness of the product. Protect metal containers from sun during summer months with temperatures above 80 degrees F. 1.8 SEQUENCING A. Coordinate rough and fine grading, soil preparation, irrigation, and other related units of Work specified in other Sections to ensure that infield can be installed in timely fashion and per manufacturer's recommendations. 1.9 WARRANTY A. General: Warranties specified in this Section shall not deprive the Owner of other rights the Owner may have under other provisions of the Contract Documents and shall be in addition to and run concurrent with other warranties made by the Contractor under requirements of the Contract Documents, PART 2 -PRODUCTS 2.1 CLAY INFIELD A. Material shall be reddish clay mix designed to provide the following: l . Firm traction 2. Good drainage 3. Adequate moisture retention to insure a pliable surface texture L:3 Clay mixture shall provide adequate compaction while retaining ability to be worked up easily during maintenance procedures. Mixture shall be all natural ingredients; reddish in color with no segregation of ingredients. Clay mix shall consist of approximately 607o sand, 207o silt, and 20% clay. Mixture screens through 1 /4 mesh screen. Clay Particle Size Analysis Sieve Size %Retained on Screen #8 3% #140 37% Slayter Creek Park Phase II Baseball Field Surfacing Anna, Texas 32 18 23-14 August 23, 2012 US Sieve Number Sieve Opening (mm) Mass Retained (g) Mass Passing (g) Percent Finer by Weight 8 2.360 1.31 98.79 98.69 16 1.180 2.21 96.58 96.48 30 0.600 3.03 93.55 93.46 50 0.300 6.62 86.93 86.84 100 0.150 16.00 70.93 70.86 200 0.075 18.00 52.93 52.88 PAN 52.93 0.00 0.00 2.2 INFIELD CONDITIONER A. Infield conditioners be Crimson Red in color and made up of all natural material, crushed brick product specifically designed for baseball infields. Material shall provide the following: 1. Good drainage 2. Adequate moisture retention to insure a pliable surface texture 3. Material should be quick drying and absorbent B. Infield conditioner shall meet the following: Liquid Plastic Plasticity Index Description Limit Limit Reddish Brown 26% 16% 10% Sieve Size % Retained Passin # 1 /4" 0 100 #4 0 100 #8 6 94 # 16 52.1 47.9 #30 70.2 29.8 #50 82.8 17.2 # 100 90.8 9.2 2.3 BASES AND PLATES A. Provide one set of bases per ball field with stakes. Bases shall be official size (15"x15"x3") and made of heavy duty material that is both water and weather resistant. Inverted sewn corner seams for extra durability and a double -thick -top for long lasting wear. Poly foam inner core allows for maximum shape. By MacGregor or equal as approved by Landscape Architect or Owner's Representative. B. Provide base with anchor base and metal sleeve. Provide 3 bases per field. C. Provide home plate with anchor and sleeve, beveled hard white rubber with black edge. Provide one home plate per ball field. Weighs approximately 17 pounds. By MacGregor or equal as approved by Landscape Architect or Owner's Representative. D. Provide pitcher's plate with anchor and sleeve, hard white rubber. Provide one pitchers' plate per ball field. By MacGregor or equal as approved by Landscape Architect or Owner's Representative. Slayter Creek Park Phase II Baseball Field Surfacing Anna, Texas 32 18 23-15 August 23, 2012 PART 3 - EXECUTION 3.1 SITE PREPARATION A. Examine subgrade and verify conditions under which work is to be performed. Do not proceed with work until all rough grading and related work is completed in a satisfactory manner so that the infield installation can proceed. Excavate and remove soil as needed to allow for clay infield construction to meet proposed finish grades. Delineate infield areas and receive approval from Owner's Representative prior to starting work. 3.2 CLAY INFIELD AND CONDITIONER INSTALLATION A. Provide six (6) inch depth of clay to cover infield area. Install and two inch lifts and compact each lift with roller. Fine grade with several passes of machinery. Hand -rake the surface, removing all clods and undesireable material greater than one-half (1 /2") inch from ground surface. Fill all low spots and cut irregularities to the acceptance of the Landscape Architect or Owner's representative. Regrade as needed to achieve finish grade. Roll the entire surface evenly with a 200 pound water ballast roller or other means acceptable. B. Top dress infield with Infield Conditioner to incorporate about one-half (1 /2) inch depth into the clay. Spread evenly over infield. C. Till the conditioner into the infield soil to depth of 2 to 3 inches. D. Roll pack and level the infield. E. Water the infield surface evenly. After allowing ample time for the water to soak in, add one- fourth (1 /4) inch of Infield Conditioner evenly over the field. F. Nail drag to incorporate conditioner into clay. Avoid nail dragging when soil is too wet or too dry. G. Reapply conditioner as needed to correct low spots. Screen drag to provide smooth, even finish grade to meet UIL standards for high school play. Final grade must meet approval of Owner's representative. 3.3 BASES AND PLATES A. Verify location and layout bases and plates with Owner's Representative prior to commencing work. B. Install in grade sleeves and anchors per manufacturer's directions. 3.4 CLEAN-UP Keep premises neat and orderly including organization of storage areas. Remove trash and debris from infield areas daily as work progresses. Keep adjacent turf areas clean of clay or conditioner by raking or hosing. 3.5 FINAL ACCEPTANCE A. Final acceptance shall be considered the time at which infield, turfgrass, and related work, as well as, clean-up are 100% completed. END OF SECTION Slayter Creek Park Phase II Baseball Field Surfacing Anna, Texas 32 18 23-16 August 23, 2012 SECTION 32 31 13 CHAIN LINK FENCES AND GATES PART 1 -GENERAL 1.1 RELATED DOCUMENTS A. Drawings and general provisions of the Contract, including General and Supplementary Conditions and Division 01 Specification Sections, apply to this Section. 1.2 SUMMARY A. Section Includes: l . Chain -link fences. 2. Gates: Swing and sliding. 3. Pole supported barrier netting: B. Related Sections: 1. Division 03 Section "Cast -in -Place Concrete" for cast -in -place concrete post footings. 1.3 PERFORMANCE REQUIREMENTS A. Lightning Protection System: Maximum grounding -resistance value of 25 ohms under normal dry conditions. 1.4 ACTION SUBMITTALS A. Product Data: For each type of product indicated. Include construction details, material descriptions, dimensions of individual components and profiles, and finishes for chain -link fences and gates. 1. Fence and gate posts, rails, and fittings. 2. Chain -link fabric, reinforcements, and attachments. 3. Gates and hardware. 4. Barrier netting, poles and cabling B. Delegated Design: Provide sealed Shop Drawings prepared by an engineer licensed in the state of Texas for Barrier Netting system including but not limited to the following items for complete working system: 1. Selection and spacing of netting posts for 30 foot tall netting. 2. Pole foundations 3. Cable selection for span including all fittings. 4. Netting attachment at all conditions C. Samples for Initial Selection: For components with factory -applied color finishes. 1.5 INFORMATIONAL SUBMITTALS A. Warranty: Sample of special warranty. l .b CLOSEOUT SUBMITTALS A. Operation and Maintenance Data: For the following to include in maintenance manuals: I. Gate hardware. 1.7 QUALITY ASSURANCE A. Testing Agency Qualifications: For testing fence grounding. Member company of NETA or an N RTL. 1. Testing Agency's Field Supervisor: Currently certified by NETA to supervise on -site testing. 1.8 PROJECT CONDITIONS A. Field Measurements: Verify layout information for chain -link fences and gates shown on Drawings in relation to property survey and existing structures. Verify dimensions by field measurements. Slayter Creek Park Phase II Chain Link and Gates Anna, Texas 32 18 23-17 August 23, 2012 1.9 WARRANTY A. Special Warranty: Manufacturer's standard form in which Installer agrees to repair or replace components of chain -link fences and gates that fail in materials or workmanship within specified warranty period. 1. Failures include, but are not limited to, the following: a. Deterioration of metals, metal finishes, and other materials beyond normal weathering. 2. Warranty Period: Five years from date of Substantial Completion. PART 2 -PRODUCTS 2.1 CHAIN -LINK FENCE FABRIC A. General: Provide fabric in one-piece heights measured between top and bottom of outer edge of selvage knuckle or twist. Comply with CLFMI Product Manual and with requirements indicated below: 1. Fabric Height: As indicated on Drawings. 2. Steel Wire Fabric: Wire with a diameter of 0.148 inch. a. Mesh Size: 2 inches. b. Zinc -Coated Fabric: ASTM A 392, Type II, Class 2, 2.0 oz./sq. ff. with zinc coating applied after weaving. 3. Selvage: Twisted top and knuckled bottom. 2.2 FENCE FRAMING A. Posts and Rails: Comply with ASTM F 1043 for framing, including rails, braces, and line; terminal; and corner posts. Provide members with minimum dimensions and wall thickness according to ASTM F 1043 or ASTM F 1083 based on the following: 1. Fence Height: As indicated on Drawings. 2. Heavy Industrial Strength: Material Group IA, round steel pipe, Schedule 40. a. Line Post: 2.375 inches in diameter, schedule 40, metallic coated. b. End, Corner and Pull Post: 2.375 inches in diameter, schedule 40 unless otherwise required by installation, metallic coated. c. Gate Post, Single Gates: 4.0 inches in diameter, schedule 40, metallic coated. d. Gate Post, Double Gates: 6.625 inches in diameter, schedule 40, metallic coated. 3. Horizontal Framework Members: Top rail complying with ASTM F 1043. a. Top Rail: 1.66 inches in diameter Schedule 40, metallic coated. 4. Brace Rails: Comply with ASTM F 1043. 5. Metallic Coating for Steel Framing: a. Type A, consisting of not less than minimum 2.0-oz./sq. ft. average zinc coating per ASTM A 123/A 123M or 4.0-oz./sq. ft. zinc coating per ASTM A 653/A 653M. 2.3 TENSION WIRE A. Metallic -Coated Steel Wire: 0.177-inch- diameter, marcelled tension wire complying with ASTM A 817 and ASTM A 824, with the following metallic coating: 1. Type II, zinc coated (galvanized) by hot -dip process, with the following minimum coating weight: a. Class 4: Not less than 1.2 oz./sq. ft. of uncoated wire surface. 2.4 SWING GATES A. General: Comply with ASTM F 900 for gate posts and single or double swing gate types, as indicated on the Drawings. 1. Gate Leaf Width: As indicated. 2. Gate Fabric Height: 84 inches at fences 8 feet and higher, match fence height at fences 6 feet or less. B. Pipe and Tubing: 1. Zinc -Coated Steel: Comply with ASTM F 1043 and ASTM F 1083; protective coating and finish to match fence framing. 2. Gate Frames and Bracing: Round tubular steel. C. Frame Corner Construction: Welded or assembled with corner fittings. to ter Creek Park Phase II Chain Link and Gates Anna, Texas 32 18 23-18 August 23, 2012 D. Hardware: 1. Hinges: Swing as indicated on the Drawings. 2. Latches permitting operation from both sides of gate with provision for padlocking accessible from both sides of gate. 3. Exit Devices and Accessories: Required at enclosure gates refer to Door Hardware Section 087100 2.5 SLIDING GATES A. General: Comply with ASTM F 900 for gate posts and single or double sliding gate types, as indicated on the Drawings. 1. Gate Leaf Width: As indicated. 2. Gate Fabric Height: 72 inches or less. Be Pipe and Tubing: 1. Zinc -Coated Steel: Comply with ASTM F 1043 and ASTM F 1083; protective coating and finish to match fence framing. 2. Gate Frames and Bracing: Round tubular steel. C. Frame Corner Construction: Welded or assembled with corner fittings. D. Hardware: 1. Hinges: Swing as indicated on the Drawings. 2. Latches permitting operation from both sides of gate with provision for padlocking accessible from both sides of gate. 3. Guide Rails and Rollers: Manufacturers standard angle rail and 4 inch diameter cradle rollers, configured to prevent lifting gate off of guide rails 4. Gate Wheels: 6 inch diameter minimum, double wheel truck assembly welded to leading edge of sliding gate 2.6 FITTINGS A. General: Comply with ASTM F 626. Be Post Caps: Provide for each post. 1. Provide line post caps with loop to receive top rail. C. Rail and Brace Ends: For each gate, corner, pull, and end post. D. Rail Fittings: Provide the following: 1. Top Rail Sleeves: Pressed -steel or round -steel tubing not less than 6 inches long. E. Tension and Brace Bands: Pressed steel for posts 4 inches O.D and smaller, aluminum Alloy 6063 for posts larger than 4 inches O.D. F. Tension Bars: Steel, length not less than 2 inches shorter than full height of chain -link fabric. Provide one bar for each gate and end post, and two for each corner and pull post, unless fabric is integrally woven into post. G. Truss Rod Assemblies: Steel, hot -dip galvanized after threading rod and turnbuckle or other means of adjustment. H. Tie Wires, Clips, and Fasteners: According to ASTM F 626. 1. Standard Round Wire Ties: For attaching chain -link fabric to posts, rails, and frames, complying with the following: a. Hot -Dip Galvanized Steel: 0.148-inch-diameter wire; galvanized coating thickness matching coating thickness of chain -link fence fabric. I. Finish: 1. Metallic Coating for Pressed Steel or Cast Iron: Not less than 1.2 oz. /sq. ft. zinc. 2.7 FENCE GROUNDING A. Conductors: Bare, solid wire for No. b AWG and smaller; stranded wire for No. 4 AWG and larger. l . Material above Finished Grade: Copper. 2. Material on or below Finished Grade: Copper. 3. Bonding Jumpers: Braided copper tape, 1 inch wide, woven of No. 30 AWG bare copper wire, terminated with copper ferrules. Be Connectors and Grounding Rods: Comply with UL 467. 1. Grounding Rods: Copper -clad steel, 5/8 by 96 inches. Slayter Creek Park Phase II Chain link and Gates Anna, Texas 32 18 23-19 August 23, 2012 2.8 POLE MOUNTED BARRIER NETTING A. Netting: Type 66-728 Knotted Nylon and Braided Dacron by Dupont or approved substitution. 1. Color: Black. B. Posts: Galvanized steel posts as designed by fencing engineer. C. Steel Cable: High tensile strength steel cable as selected by fencing engineer. PART 3 -EXECUTION 3.1 EXAMINATION A. Examine areas and conditions, with Installer present, for compliance with requirements for site clearing, earthwork, pavement work, and other conditions affecting performance of the Work. 1. Do not begin installation before final grading is completed unless otherwise permitted by Architect. B. Proceed with installation only after unsatisfactory conditions have been corrected. 3.2 PREPARATION A. Stake locations of fence lines, gates, and terminal posts. Do not exceed intervals of 500 feet or line of sight between stakes. Indicate locations of utilities, lawn sprinkler system, underground structures, benchmarks, and property monuments. 3.3 INSTALLATION, GENERAL A. Install chain -link fencing to comply with ASTM F 567 and more stringent requirements indicated. 3.4 CHAIN -LINK FENCE INSTALLATION A. Post Excavation: Drill or hand -excavate holes for posts to diameters and spacings indicated, in firm, undisturbed soil. 1. Excavate holes for line and other posts, except gate posts, 12 inches in diameter and extend a minimum of 18 inches below finished grade. 2. Excavate holes for 4-inch diameter gate posts 16 inches in diameter and extend a minimum of 48 inches below finished grade. 3. Excavate holes for 6 5/8-inch diameter gate posts 18 inches in diameter and extend a minimum of 60 inches below finished grade. B. Post Setting: Set posts in concrete at indicated spacing into firm, undisturbed soil. 1. Verify that posts are set plumb, aligned, and at correct height and spacing, and hold in position during setting with concrete or mechanical devices. 2. Concrete Fill: Place concrete around posts to dimensions indicated and vibrate or tamp for consolidation. Protect aboveground portion of posts from concrete splatter. a. Exposed Concrete: Extend 2 inches above grade; shape and smooth to shed water. C. Terminal Posts: Locate terminal end, corner, and gate posts per ASTM F 567 and terminal pull posts at changes in horizontal or vertical alignment of 15 degrees or more. 1. Provide extended terminal posts 12'-0" tall to serve as foul posts at ends of outfield fences at both softball and baseball fields. Provide framing and chain link fabric for 18 inch wide x 72 inch high panel on inside of foul line starting at 6 feet to top of post. Paint all fencing above 6 feet safety yellow. D. Line Posts: Space line posts uniformly at 96 inches o.c. maximum. E. Post Bracing and Intermediate Rails: Install according to ASTM F 567, maintaining plumb position and alignment of fencing. Diagonally brace terminal posts to adjacent line posts with truss rods and turnbuckles. Install braces at end and gate posts and at both sides of corner and pull posts. 1. Locate horizontal braces at midheight of fabric 72 inches or higher and on fences with top rail. Install so posts are plumb when diagonal rod is under proper tension. F. Tension Wire: Install according to ASTM F 567, maintaining plumb position and alignment of fencing. Pull wire taut, without sags. Fasten fabric to tension wire with 0.120-inch-diameter hog rings of same material and finish as fabric wire, spaced a maximum of 18 inches o.c. Install tension wire in locations indicated before stretching fabric. Provide horizontal tension wire at the following locations: 1. Extended along bottom of fence fabric. Install bottom tension wire within 6 inches of bottom of fabric and tie to each post with not less than same diameter and type of wire. Slayter Creek Park Phase II Chain Link and Gates Anna, Texas 32 18 23-20 August 23, 2012 G. Top Rail: Install according to ASTM F 567, maintaining plumb position and alignment of fencing. Run rail continuously through line post caps and terminating into rail end attached to posts or post caps fabricated to receive rail at terminal posts. Provide expansion couplings as recommended in writing by fencing manufacturer. H. Intermediate Rails: Install and secure to posts with fittings. I. Chain -Link Fabric: Apply fabric to outside of enclosing framework. Leave 2 inches between finish grade or surface and bottom selvage unless otherwise indicated. Pull fabric taut and tie to posts, rails, and tension wires. Anchor to framework so fabric remains under tension after pulling force is released. J. Tension or Stretcher Bars: Thread through fabric and secure to end, corner, pull, and gate posts with tension bands spaced not more than 15 inches o.c. K. Tie Wires: Use wire of proper length to firmly secure fabric to line posts and rails. Attach wire at one end to chain -link fabric, wrap wire around post a minimum of 180 degrees, and attach other end to chain -link fabric per ASTM F 626. Bend ends of wire to minimize hazard to individuals and clothing. 1. Maximum Spacing: Tie fabric to line posts, braces and top rail at 12 inches o.c. L. Fasteners: Install nuts for tension bands and carriage bolts on the side of the fence opposite the fabric side. 3.5 GATE INSTALLATION A. Install gates according to manufacturer's written instructions, level, plumb, and secure for full opening without interference. Attach fabric as for fencing. Attach hardware using tamperresistant or concealed means. Install ground -set items in concrete for anchorage. Adjust hardware for smooth operation and lubricate where necessary. 3.6 GROUNDING AND BONDING A. Fence Grounding: Install at maximum intervals of 1500 feet except as follows: l . Fences within 100 Feet of Buildings, Structures, Walkways, and Roadways: Ground at maximum intervals of 750 feet. a. Gates and Other Fence Openings: Ground fence on each side of opening. 1) Bond metal gates to gate posts. B. Grounding Method: At each grounding location, drive a grounding rod vertically until the top is 6 inches below finished grade. Connect rod to fence with No. 6 AWG conductor. Connect conductor to each fence component at the grounding location, including the following: C. Bonding Method for Gates: Connect bonding jumper between gate post and gate frame. D. Connections: Make connections to minimize possibility of galvanic action or electrolysis. Select connectors, connection hardware, conductors, and connection methods so metals in direct contact will be galvanically compatible. 1. Use electroplated or hot -tin -coated materials to ensure high conductivity and to make contact points closer in order of galvanic series. 2. Make connections with clean, bare metal at points of contact. 3. Make aluminum -to -steel connections with stainless -steel separators and mechanical clamps. 4. Make aluminum -to -galvanized -steel connections with tin-plated copperjumpers and mechanical clamps. 5. Coat and seal connections having dissimilar metals with inert material to prevent future penetration of moisture to contact surfaces. 3.7 FIELD QUALITY CONTROL A. Grounding -Resistance Testing: Engage a qualified testing agency to perform tests and inspections. 1. Grounding -Resistance Tests: Subject completed grounding system to a megger test at each grounding location. Measure grounding resistance no fewer than two full days after last trace of precipitation, without soil having been moistened by any means other than natural drainage or seepage and without chemical treatment or other artificial means of reducing natural grounding resistance. Perform tests by two -point method according to IEEE 81. Slayter Creek Park Phase II Chain Link and Gates Anna, Texas 32 18 23-21 August 23, 2012 2. Excessive Grounding Resistance: If resistance to grounding exceeds specified value, notify Architect promptly. Include recommendations for reducing grounding resistance and a proposal to accomplish recommended work. 3. Report: Prepare test reports certified by a testing agency of grounding resistance at each test location. Include observations of weather and other phenomena that may affect test results. 3.8 ADJUSTING A. Gates: Adjust gates to operate smoothly, easily, and quietly, free of binding, warp, excessive deflection, distortion, nonalignment, misplacement, disruption, or malfunction, throughout entire operational range. Confirm that latches and locks engage accurately and securely without forcing or binding. B. Lubricate hardware and other moving parts. �11i7��i�7[iP►[c3��3iIi c3 Slayter Creek Park Phase II Chain Link and Gates Anna, Texas 32 18 23-22 August 23, 2012 SECTION 32 84 00 LANDSCAPE IRRIGATION PART 1-GENERAL 1.1 DESCRIPTION A. Furnish all work and materials, appliances, tools, equipment, facilities, transportation, and services necessary for and incidental to performing all operations in connection with the installation of underground sprinkler irrigation system complete, as shown on drawings and/or specified herein. When the term "Contractor" is used in this section, it shall refer to the irrigation Contractor. 1.2 QUALITY ASSURANCE A. The following Codes, Regulations, Reference Standards, and Specifications apply to work included in this section: ASTM: D2241, D2464, D2466, D2564, and D855. Be Utilities: Determine locations of underground utilities and perform work in a manner which is intended to avoid possible damage. Hand excavate, where required, to minimize possibility of damage to underground utilities. 1.3 WARRANTY AND MAINTENANCE A. The Contractor shall warranty material and workmanship for one year after final acceptance including repair and replacement of defective materials, workmanship, and repair of backfill settlement. Be Maintenance during warranty shall include, but not necessarily be limited to, the following: 1. Adjustment of sprinkler height and plumb to compensate for settlement and/or plant growth. 2. Backfilling of all trenches. 3. Adjustment of head coverage (arc of spray) as necessary. 4. Unstopping heads plugged by foreign material. 5. Adjustment of controller as necessary to insure proper sequence and watering time. 6. All maintenance necessary to keep the system in good operating order. Repair of damage caused by vandals, other contractors or weather conditions shall be considered extra to these specifications. C. Warranty and maintenance after final acceptance does not include alterations as necessitated by re -landscaping, re -grading, addition of trees or the addition, and/or changes in sidewalks, walls, driveways, etc. 1.4 SUBMITTALS A. The Contractor shall submit shop drawings or manufacturers "cut sheet" for each type of sprinkler head, pipe, controller, valves, check valve assemblies, valve boxes, wire, conduit, fittings, and all other types of fixtures and equipment proposed to install on the job. The submittal shall include the manufacturer's name, model number, equipment capacity, and manufacturer's installation recommendation, if applicable, for each proposed item. Be No partial submittal will be accepted and submittals shall be neatly bound into a brochure and logically organized. After the submittal has been approved, substitutions will not be allowed except by written consent of the Landscape Architect. C. Shop drawings shall include dimensions, elevations, construction, details, arrangements, and capacity of equipment, as well as manufacturer's installation recommendations. 1.5 "APPROVED EQUAL" SUBSTITUTIONS A. Several items in this section and on the plans are specified by a manufacturers brand name and catalog number. This is not intended to unduly restrict competitive procurements or bidding, but is done to assure a minimum standard of quality which is believed to be best for the item specified and to match existing equipment. Slayter Creek Park Phase 11 Landscape Irrigation Anna, Texas 32 18 23-23 August 23, 2012 l .b CODES /PERMITS A. All work under this section shall comply with the provisions of these Specifications, as illustrated on the accompanying drawings, or as directed by the Landscape Architect and shall satisfy all applicable local codes, ordinances, or regulations of the governing bodies and all authorities having jurisdiction over this Project. B. Installation of equipment and materials shall be done in accordance with requirements of the National Electrical Code, Local City Plumbing Code, and standard plumbing procedures. The drawings and these Specifications are intended to comply with all the necessary rules and regulations; however, some discrepancies may occur, the Contractor shall immediately notify the Landscape Architect in writing of the discrepancies and apply for an interpretation. Should the discovery and notification occur after the execution of a contract, any additional work required for compliance with the regulations shall be paid for as covered by these Contract documents. Co The Contractor shall give all necessary notices, obtain all permits, and pay all costs in connection with his work; file with all governmental departments having jurisdiction; obtain all required certificates of inspection for his work and deliver to the Landscape Architect. D. The Contractor shall include in the work any labor, materials, services, apparatus, or drawings in order to comply with all applicable laws, ordinances, rules, and regulations whether or not shown on the drawings and/or specified. E. The installation of the irrigation system shall be made by an individual or firm duly qualified with a minimum of five years experience installing systems of similar size and scope. 1.7 EXISTING UTILITIES A. Locations and elevations of various utilities included with the scope of this work have been obtained from the most reliable sources available and should serve as a general guide without guarantee to accuracy. The Contractor shall examine the Site and verify to his own satisfaction the locations and elevation of all utilities and availability of utilities and services required. The Contractor shall inform himself as to their relation to the work and the submission of bids shall be deemed as evidence thereof. The Contractor shall repair at his own expense, and to the satisfaction of the Landscape Architect, for damage to any utility shown or not shown on the plans. B. Should utilities not shown on the plans be found during excavations, Contractor shall promptly notify the Landscape Architect for instructions as to further action. C. Contractor shall make necessary adjustments in the layout as may be required to connect to existing stub -outs, should such stub- outs not be located exactly as shown and as may be required to work around existing work, at no increase in cost to the Owner. All such work will be recorded on record drawings and turned over to the Landscape Architect prior to final acceptance. 1.8 RECORD DRAWINGS A. Record dimensioned locations and depths for each of the following: 1. Point of connection. 2. Sprinkler pressure line routing (provide dimensions for each 100 lineal feet (maximum) along each routing, and for each change in directions). 3. Gate valves. 4. Sprinkler control valves (buried only). 5. Control wire routing. 6. Other related items as may be directed by the Landscape Architect. B. Locate all dimensions from two permanent points (buildings, monuments, sidewalks, curbs, or pavements). C. Record all changes which are made from the Contract drawings, including changes in the pressure and non -pressure lines. D. Record all required information on a set of blackline prints of the Contract drawings. Do not use these prints for any other purpose. E. Maintain information daily. Keep Contract drawings at the Worksite at all times and available for review by the Owner's representative. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-24 August 23, 2012 F. When record drawings have been approved by the Owner's Representative, transfer all information to a set of reproducible mylars using permanent India ink. Changes using ball-point pen are not acceptable. Make dimensions accurately at the same scale used on original Drawings, or larger. If photo reduction is required to facilitate controller chart housing, notes or dimension must be a minimum 1 /4 inch in size. G. Reproducible mylars shall be furnished by the Contractor. 1.9 CONTROLLER CHARTS A. Do not prepare charts until record drawings have been approved by the Owner's representative. B. Provide one controller chart for each automatic controller installed. l . Chart may be a reproduction of the record drawing, if the scale permits fitting within the controller door. If photo reduction prints are required, keep reduction to maximum size possible to retain full legibility. 2. Chart shall be blackline print of the actual system, showing the area covered by that controller. C. Identify the area of coverage of each remote control valve, using a distinctly different pastel color, drawn over the entire area of coverage. D. Following approval of charts by the Owner's representative, they shall be hermetically sealed between two layers of 20 mil. thick plastic sheet. E. Charts must be completed and approved prior to final acceptance of the irrigation system. 1.10 OPERATING AND MAINTENANCE MANUALS &TRAINING A. Provide individual bound manuals detailing operating and maintenance requirements for irrigation systems. B. Manuals shall be delivered to the Owner's representative for review and approval no later than 10 days prior to completion of work. Revise manual as required. C. Provide descriptions of all installed materials and systems in sufficient detail to permit maintenance personnel to understand, operate, and maintain the equipment. D. Provide the following in each manual: 1. Index sheet, stating Irrigation Contractor's name, address, telephone number, and name of person to contact. 2. Duration of guarantee period. 3. Equipment list providing the following for each item: a. Manufacturer's name. b. Make and model number. c. Name and address of local manufacturer's representative. d. Spare parts list in detail. e. Detailed operating and maintenance instructions of major equipment. 4. Recommended programs for watering by season. 5. Comply with DISD CHPS WE 1.3 verifying that site irrigation systems and controller are operational as intended and that training has been provided to DISD maintenance personnel. l.11 CHECKLIST A. Provide a signed and dated checklist, and deliver to the Owner's representative prior to final acceptance of the work. B. Use the following format: l . Plumbing permits: if none required, so note. 2. Material approvals: approved by and date. 3. Pressure line tests: by whom and date. 4. Record Drawings: received by and date. 5. Controller charts: received by and date. 6. Materials furnished: received by and date. 7. Operation and maintenance manuals: received by and date. 8. System and equipment operation instructions: received by and date. 9. Manufacturer's warranties if required: received by and date. 10. Written guarantee: received by and date. 11. Lowering of heads in lawn areas: if incomplete, so state. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-25 August 23, 2012 1.12 ELECTRICAL POWER A. Electric power to operate the controller shall be furnished by the Electrical Contractor unless otherwise noted on the plans. Service wiring to the controller cabinet shall be furnished by the Contractor. 1.13 WATER METER A. A water meter shall be furnished by Civil Contractor unless otherwise noted on the plans. 1.14 WATER FOR TESTING A. Unless noted otherwise on the plans or elsewhere, furnish all water necessary for testing, flushing, and jetting. 1.15 BORINGS, SLEEVES AND ELCTRICAL CONDUITS A. Sleeves and electrical conduits are the responsibility of the Irrigation Contractor to install prior to paving or related construction and should be installed as noted on the drawings and specifications. Contractors shall be responsible for locating all sleeves and conduits at no additional cost to the Owner. Borings under existing paving will be required where noted on the drawings and shall be provided at no additional cost to the Owner. Borings shall be a minimum of 18 inch depth and new pipes shall be incased in Schedule 40 sleeves. 1.16 SPARE PARTS A. The Contractor shall supply the Owner with five spray heads. The Contractor shall supply six quick coupler keys and hose swivel for the quick couplers. PART 2 -PRODUCTS 2.1 GENERAL A. Unless otherwise noted on the plans, all materials shall be new and unused. The irrigation equipment catalog numbers used for reference in these Specifications are to establish minimum quality standards and may be substituted with an "approved equal" as outlined in Paragraph 1.6 of this section. 2.2 POLYVINYL CHOLRIDE PIPE (PVC PIPE) PVC pipe manufactured in accordance with ASTM Standards noted herein A. Marking and Identification: PVC pipe shall be continuously and permanently marked with following information: Manufacturers name, size, type of pipe, and material, SDR number, Product Standard number, and the NSF (National Sanitation Foundation) Seal. B. PVC pipe fittings: Shall be of the same material as the PVC pipe specified and compatible with PVC pipe furnished. Solvent weld type shall be Schedule 40. C. PVC Pipe: Shall be Class 200 solvent weld, SDR-21, PS 22-70 for all sizes 3/4" - 2". All 1/2' pipe shall be solvent weld SDR- 13.5, Class 315. D. Flexible PVC Risers (Nipples): All flexible PVC nipples shall be made from virgin PVC material, and shall comply with ASTM D2287, shall be tested at 200 P.S.I. static pressure for 2 hours and have a quick burst rating of a minimum 400 P.S.I. Flexible PVC pipe nipples shall be factory assembled only 2.3 SWING JOINTS A. Swing joints shall be O-ring seal type. Use Lasco or approved equal. 2.4 WIRE AND SPLICES A. All wire shall be single strand solid copper, minimum 14 gauge with type OF insulation which is Underwriters Laboratory approved for direct underground burial when used in a National Electrical Code Class II Circuit (30 volts AC or less) as per Articles 725 and 300. Voltage drop shall be taken into consideration. B. All wire shall be color coded so that the common wire shall have white insulation and the signal wires shall have red insulation. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-26 August 23, 2012 C. All wire connectors shall have a two-piece PVC housing which, when filled with resin epoxy and pressed together, forms a permanent, one-piece, moisture -proof wire splice. D. All connectors shall be UL listed, rated 600 volt, for PVC insulated wire. No wire splices shall be buried. 2.5 QUICK COUPLING VALVES A. Quick coupling valves shall be composed of a bronze cast body with a weighted metal cover B. The valve shall accept a single lug'/4-inch bronze valve key for operation. C. Provide one coupler and one hose swivel ell for each quick coupling valve shown on the plans. 2.6 MANUAL VALVES A. Manual valves 2'/2" and smaller shall be all brass, globe type with composition disc rated at 150 pounds W.O.G. B. All valves shall have wheel handles unless cross handles are called for on the plan. 2.7 VALVE BOXES A. A box shall be provided for all valves. B. Valve boxes shall be made of high -strength plastic suitable for turf irrigation purposes. C. Boxes shall be suitable in size and configuration for the operability and adjustment of the valve. D. Extension sections will be used as appropriate to the depth of piping. E. All valve box covers shall bolt down or have locking mechanisms and shall be colored green or black as selected by the Landscape Architect. 2.8 POP-UP SPRAY, ROTOR AND BUBBLER HEADS A. Pop-up spray, rotor and bubbler heads are to be Hunter heads as specified on the drawings. B. Spray heads shall have a minimum 4" pop- up or 12" pop-up as designated on the drawings. The sprinkler body and all related parts shall be plastic cycolac or polycarbonate. They shall have a spring retraction for positive return action of the pop-up nozzle. The spring for retraction and the adjustable nozzle screw shall be made of corrosion resistant materials. C. All heads are to be operated and site adjusted to match precipitation rate of all heads in the zone with proper nozzle selection and arc adjustments. 2.9 ELECTRICAL CONTROLLER- BASELINE (BASESTATION 320014wo wire A. Electric irrigation controller shall be capable of operating the number of stations as indicated on the drawings. The system is designed to operate only one section valve at a time, unless otherwise noted. The controller is specified on the drawings. B. Power source shall be standard 120 volt 60 Cycle AC. Output for operation of companion solenoid actuated valves shall be 24 volts 60 Cycle AC. C. Operation of the controller shall be full automatic, incorporating one 24 hour clock and 14 day calendar per controlled number of electric valves shown on the plan to start the sprinkling cycle any hour or hours of the day or night of any day or days over a repeating 14 day period. D. The controller shall be capable of repeating watering cycles as required with a maximum delay between the ending of one cycle and the beginning of the next not to exceed 2 hours. Control shall provide optional semi -automatic operation whereby the automatic cycle may be started independent of the clock and manual operation whereby any station may be operated by hand independent of all timing mechanism. The choice of automatic day or hour programming shall be available to the operator on the face of the control panel without the use of tools. E. The automatic controller shall be equipped with rainproof housing. F. Provide rain/freeze/ and moisture sensors. G. Provide Ethernet data drop by controller location for connectivity. 2.10 ELECTRIC REMOTE CONTROL VALVES A. Electric remote control valves shall have plastic bodies and covers and shall be globe -type diaphragm valves of normally closed design. The remote valves are specified on the drawings. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-27 August 23, 2012 B. Operation shall be accomplished by means of integrally mounted heavy-duty 24-V AC solenoid complying with National Electrical Code, Class II Circuit. Solenoid coil shall be potted in epoxy resin within a plastic coated stainless steel housing. Solenoids shall be completely waterproof, suitable for direct underground burial. C. A flow stem adjustment shall be included in each valve. 2.11 BACKFLOW PREVENTER A. A double check assembly shall be located and sized as shown on the plans. B. Construction shall be all brass for sizes 3/4" - 2". C. This assembly shall be installed in a box and shall conform to the City Plumbing Codes. PART 3 -EXECUTION 3.1 PERSONNEL A. Design Pressure: This irrigation system has been designed to operate with a minimum static inlet water pressure as indicated on the drawings. The Contractor shall take a pressure reading prior to beginning construction. If the pressure reading is 5% less than above, the Contractor shall notify the Owner's Representative. B. Contractor Responsibility: l . The Contractor shall not willfully install the irrigation system as shown on the drawings when it is obvious in the field that obstructions, grade differences or discrepancies in equipment usage, area dimensions or water pressure exist that might not have been considered in the engineering. Such obstructions or differences shall be brought to the attention of the Owner's Representative in writing. In the event this notification is not performed, the Contractor shall assume full responsibility for any revision necessary. C. Staking: Before installation is started, place a stake or flag where each sprinkler is to be located, in accordance with drawing. Staking shall be approved by the Landscape Architect before proceeding. D. Piping Layout: Piping layout is diagrammatic. Route piping around existing trees and root zones in such a manner as to avoid damage to plantings. Do not dig within the ball of newly planted trees or shrubs. E. In areas where trees are present, trenches will be adjusted on site to provide a minimum clearance of four times the trunk diameter of the tree (at its base) between any tree and any trench. F. All material and equipment shall be delivered to the Worksite in unbroken reels, cartons or other packaging to demonstrate that such material is new and of a quality and grade in keeping with the intent of these Specifications. 3.2 EXCAVATION AND TRENCHING A. The Contractor shall perform all excavation to the depth indicated in these Specifications and Contract drawings. The banks of trenches shall be kept as nearly vertical as practicable. Trenches shall be wide enough to allow a minimum of 4" between parallel pipelines or electrical wiring. Where rock excavation is required, or where stones are encountered in the bottom of the trench that would create a concentrated pressure on the pipe, the rock or stones shall be removed to a depth of six (6) inches minimum below the trench depth indicated. The over depth rock excavation and all excess trench excavation shall be backfilled with loose, moist earth or sand, thoroughly tamped. Whenever wet or otherwise unstable soil that is incapable of properly supporting the pipe is encountered in the trench bottom, such shall be removed to a depth and length required, and the trench backfilled to trench bottom grade as hereinafter specified, with course sand, fine gravel or other suitable material. B. Bottom of trench grade shall be continued past ground surface deviations to avoid air pockets and low collection points in the line. The minimum cover specifications shall govern regardless of variations in ground surface profile and the occasional deeper excavation required at banks and other field conditions. Excavation shall be such that a uniform trench grade variation will occur in all cases where variations are necessary. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-28 August 23, 2012 C. Trench excavation shall comprise the satisfactoryremoval and disposition of all materials, and shall include all shoring and sheeting required to protect the excavation and to safeguard employees. D. During excavation, material suitable for backfilling shall be stockpiled in an orderly manner a sufficient distance back from edge of trenches to avoid overloading and prevent slides or cave-ins. Material unsuitable for backfilling shall be wasted as directed by the Owner's Representative. When excavated material is of a rocky nature and the topsoil or any other layer of excavated material is suitable for pipe bedding and backfill in the vicinity of the pipe, such material shall be separately stockpiled for use in such bedding and pipe backfill operations, unless satisfactory imported material is used. E. All excavations and backfill shall be unclassified and covered in the basic bid. No additional compensation will be allowed for rock encountered. F. Restore all surfaces, existing underground installations, etc., damaged or cut as a result of the excavations to their original conditions in a manner acceptable to the Owner's Representative. No trash, excess wiring, pipe, etc. shall be buried in trenches. 3.3 PIPE INSTALLATION A. Sprinkler Mains: Sprinkler mains are that portion of piping from water source to electric valves. This portion of piping is subject to surges since it is a closed portion of the sprinkler system. Sprinkler mains shall be installed in a trench with a minimum of 18 inches of cover. B. Lateral Piping: Lateral piping is that portion of piping from electrical valve to sprinkler heads. This portion of piping is not subject to surges since it is an "open end" portion of the sprinkler system. Lateral piping shall be installed in a trench with a minimum of 12 inches of cover. C. Remove lumber, rubbish, and rocks from trenches. Provide firm, uniform bearing for entire length of each pipeline to prevent uneven settlement. Wedging or blocking of pipe will not be permitted. Remove foreign matter or dirt from inside of pipe before welding, and keep piping clean during and after laying pipe. D. PVC pipe shall not be installed where there is water in the trench, nor shall PVC pipe be laid when temperature is 40 deg. F or below or when rain is imminent. PVC pipe will expand and contract as the temperature changes. Therefore, pipe shall be snaked from side to side of trench bottom to allow for expansion and contraction. 3.4 PVC PIPE AND FITTING ASSEMBLY A. Solvent: Use only solvent recommended by manufacturer to make solvent -welded joints following standards noted herein. Thoroughly clean pipe and fittings of dirt, dust, and moisture with an approved PVC primer before applying solvent. B. PVC to Metal Connection: Work metal connections first. Use a non -hardening pipe dope such as Permatex No. 2 or "Teflon" tape on threaded PVC to metal joints. Use only light wrench pressure. C. Threaded PVC Connections: Where required, use threaded PVC adapters into which pipe may be welded. 3.5 HYDROSTATIC TESTS A. Pressure Test: After the pipe is laid, the joints completed, and the trench partially backfilled, leaving the joints exposed for examination, the newly laid piping or any valve section of main pressure line piping shall, unless otherwise specified, be subjected for four hours to a hydrostatic pressure test of normal city water pressure. Each valve shall be opened and closed during the test. Enclosed pipe, joints, fittings, and valves shall be carefully examined during the partially open trench test. Joints showing visible leakage shall be replaced or remade, as necessary. Cracked or defective pipe, joints, fittings, or valves discovered in consequence of this pressure test shall be repeated until the test results are satisfactory. All replacement and repair shall be at contractor's cost. 3.6 CONTROL WIRE INSTALLATION A. All control wire less than 500 feet in length shall be continuous without splices or ts from the controller to the valves. Connections to the electric valves shall be made within 18 inches of the valve using connectors specified in Paragraph 2.4 of this section, unless otherwise approved by the Owner's Representative in writing. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-29 August 23, 2012 B. All control wires shall be installed at least 18-inches deep. Contractor shall obtain the Owner's Representative's approval for wire routing when installed in a separate ditch. Control wires may be installed in a common ditch with piping; however, wires must be installed a minimum of fl- inches below or to one side of piping. C. All wire passing under existing or future paving, sidewalk, construction, etc., shall be encased in PVC Schedule 40 conduit extending at least 24eet beyond edges of paving, sidewalks, or construction. 3.7 POP-UP SPRAY, ROTARY AND BUBBLER HEADS A. Provide heads and nozzles as specified and install in locations as shown on the Contract Drawings. B. Pop-up spray heads shall be installed on flex pipe as detailed on the Contract drawings. Rotary heads shall be installed on a double swing joint connected to the lateral pipe as detailed on the drawings. Keep heads a minimum of 4 inches from paved surfaces. C. Heads shall be installed with underside of flange flush with the finished grade. D. Contractor will be required to adjust heads as necessary after establishment of grass or other plant material. 3.8 QUICK COOPING VALVES A. Quick coupling valves shall be installed with the underside of flange flush with the finished grade. B. Quick coupling valves shall be installed on a swing joint assembly as detailed on the drawings. C. Under the warranty, the Contractor shall return after grass is established and adjust valves and valve boxes to proper grade. A. Manual valves shall be sized and located where shown on the Contract drawings. B. Valve boxes shall be adjusted to be flush with finished grade. The Contractor will be required to adjust after establishment of grass. C. Valve boxes shall be properly supported and of sufficient construction so that tractors and mowers crossing over the boxes will not push boxes down and crush the pipe, valve, or box. 3.10 VALVE AND VALVE BOX PLACEMENT A. All manual, electric, and quick coupling valves shall be in boxes as specified in Paragraph 2.7 of this section, and shall be set with a minimum of six (6) inches of space between their top surface and the bottom of the valve box. The base of the box shall be filled with pea gravel as B. Valves shall be fully opened and fully closed to ensure that all parts are in operating condition. C. Valve boxes shall be set plumb, vertical, and concentric with the valve stem. D. Any valve box which has moved from this required position so as to prevent the use of the operating wheel of the valve shall be reset by the Contractor at his own expense. 3.11 ELECTRICAL CONTROLLER A. Electric controller shall be located as shown on the plans and shall be capable of operating the number of stations indicated. B. The system is designed to operate only one section at a time, unless otherwise noted on the plans in strict accordance with the manufacturer's published installation instructions. C. Install automatic rain/freeze shutoff a minimum of 12 feet off the ground on adjacent building or piping. Field verify location of rain/freeze sensors prior to installation with Owner's representative. 3.12 ELECTRICAL REMOTE CONTROL VALVES A. Remote control valves shall be located and sized as shown on the plans. All electrical connections shall be made when the weather is dry with connection kits as specified in Paragraph 2.4 of this section in strict accordance with manufacturer's recommended procedures. All remote control valves shall be installed in a horizontal position, in accordance to the manufacturer's published installation instructions. Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-30 August 23, 2012 B. It shall be the responsibility of the Contractor to furnish and install the proper size wire on each of the low voltage circuits from the master control center to the various electric remote control valves. C. Consideration shall be given to each circuit for allowance of voltage drop and economy consistent with accepted practices of electrical installation. Under no circumstances shall the voltage of any branch circuit be reduced more than proper due to length of run exceeding the maximum allowable for the wire size used. 3.13 BACKFILL AND COMPACTION A. After system is operating and required tests and inspections have been made, the trenches shall be carefully backfilled with the excavated materials approved for backfilling, consisting of earth, loam, sandy clay, sand, gravel, soft shale, or other approved materials, free from large clods of earth or stone. Rock, broken concrete, or pavement, and large boulders shall not be used as backfill material. The backfill shall be thoroughly compacted and evened with the adjacent soil level. B. Compact trenches in areas to be planted by thoroughly flooding the backfill. Compact all other areas by flooding or hand tamping. The jetting process may be used in areas when flooding. Co Backfill for all trenches, regardless of the type of pipe covered, shall be compacted to a minimum of 90% density. D. Any trenches improperly backfilled, or where settlement occurs, shall be reopened to the depth required for compaction, then refilled and compacted with the surface restored to the required grade and left in a completed surface condition as described above. E. Specifically tamp backfill under heads and around the flange of heads for one foot (1') by a suitable means after trench backfill has dried from flooding to prevent heads loosening in the ground. 3.14 FINALADJUSTMENT A. After installation has been completed, make final adjustment of sprinkler system prior to Owner's Representative's final inspection. B. Completely flush system to remove debris from lines by removing nozzle from heads on ends of lines and turning on system. C. Check sprinklers for proper operation and proper alignment for direction of throw. D. Check each section for operating pressure and balance to other sections by use of flow adjustment on top of each valve. E. Check nozzling for proper coverage. Prevailing wind conditions may indicate that arc or angle of spray should be other than as shown on drawings. In this case, change nozzles to provide correct coverage and furnish record data to Owner's Representative with each change. F. After system is thoroughly flushed and ready for operation, each section of sprinklers shall be adjusted to control pressure at heads. Use the following method, one section at a time. 1. Remove last head on section and install a temporary riser above grade. Install tee with pressure gauge attached on top of riser and re -install head with nipple onto tee. 2. Correct operating pressure at last head of each section as follows: Spray Heads — 20 to 25 psi; rotor heads - 30 to 40 psi (and as recommended by the manufacturer). 3. After replacing head, at grade, tamp thoroughly around head 3.15 CLEAN-UP A. The Worksite shall be thoroughly cleaned of all waste materials and all unused or salvaged materials, equipment, tools, etc. B. After completion of the work, areas disturbed shall be leveled and the Worksite shall eraaked clean and left in an orderly condition. END OF SECTION Slayter Creek Park Phase II Landscape Irrigation Anna, Texas 32 18 23-31 August 23, 2012 SECTION 32 92 00 1.1 DESCRIPTION A. This section specifies providing topsoil, fine grading, seeding, and sodding. 1.2 QUALITY ASSURANCE The following Codes, Regulations, Reference Standards, and Specifications apply to work included in this section: A. Codes and regulations of the jurisdictional authorities. B. "REFERENCE CODES AND STANDARDS": 1. AASHTO: M140, M208. 2. ASTM: C33, C51. 4. USDA - SCS 1.3 SUBMITTALS Submit the following for approval in accordance with Section 01 30 001 "WORK RELATED SUBMITTALS", and with the additional requirements as specified for each: Samples and Certification: Submitted in accordance with Table 32 92 00 - 1, at the end of this section, and as follows: A. Seed: Each seed bag bearing the following upon delivery: 1. Analysis tag 2. Certification tag B. Sod: Certified, each delivery bearing a certification tag and label as required by law. C. Fertilizer: Labeled with manufacturer's name and address, guaranteed analysis, including nutrient and its derived source, listing of potential acidity, and any toxic materials. D. Mulch: Labeled with manufacturer's name and address, material components, trademark, chemical analysis, species, age and source. E. Topsoil and sandy loam: Submit supplier's name and address and source of topsoil. Submit certified report of soil laboratory test results listing textures, pH, P and K nutrients, soluble salt, organic matter and mechanical analysis as to percentage of sand, silt and clay. Do not deliver topsoil to site until approved. Approval does not constitute final acceptance. F. Herbicide: Labeled with manufacturer's name and address and chemical analysis G. Compost: submit sample and manufacturer's information. 1.4 PRODUCT INSPECTION, DELIVERY, STORAGE, AND HANDLING: Materials and supplies are subject to inspection and sampling for testing. Allow no seed, sod, fertilizer, straw or other agronomic materials or supplies on Worksite other than those for the Project. A. Seed: Deliver with labels and tags. B. Sod: 1. Deliver sod to job within 24 hours after being cut; place sod within 36 hours after being cut. 2. Prior to and after delivery during wet weather, allow sod to dry to the extent that will prevent tearing during handling and laying. During dry weather, water sod to ensure its vitality and prevent dropping of the soil in handling. PART 2 -PRODUCTS 2.1 SEED FOR GRASS A. Except where specified in Table 32 92 00-2, at the end of this section, provide seed free of quack grass, bentgrass, clover, dock, cheat, chess, chickweed, dallisgrass, plantain, black medic, red fescue, and tall fescue. B. Grass Seed: Dated material from last available crop, with date of test not more than nine months before date of sowing and as specified in Table 32 92 00-2. Slayter Creek Park Phase II Turf and Grasses Anna, Texas 32 92 00-32 August 23, 2012 A. Well -rooted certified sod, at least 18 months old. Varieties identical to Sod No. 1, as specified in Table 32 92 00- 2, at the end of this section, or as approved. B. Sod and attached soil free from noxious weeds such as quack grass, garlic, Johnson grass, Canada thistle, and other turf weeds. C. Mowed in production field to height of not more than 2'/2-inches within five days prior to lifting. D. Machine cut in sections not less than 2-1 /2 feet in length nor less than 12-inches in width and to a depth equal to growth of fibrous roots, uniform soil thickness of/4-inch, plus or minus 'Ainch. Measurement for thickness to exclude top growth and thatch. E. Cut in sections or strips strong enough to support its' own weight and retain size and shape when suspended vertically from firm grasp on upper 10 percent of section. Small, irregular or broken pieces of sod are prohibited. Sod on Beck Roll is permitted. 2.3 FERTILIZER For grass seeded and sodded areas: Approved commercial fertilizer 10-20-10. 2.4 MULCH A. Wood cellulose fiber. l . Containing no growth or germination inhibiting factors and dyed green. 2. Fibers furnished air-dry in packages not exceeding 50 pounds gross, with net weight shown on package. B. Straw: Wheat, barley, oat or rye straw, threshed, air-dried, and free from Canada thistle, dock, Johnson grass, and other foreign matter. C. Mulch blanket: Knitted construction of biodegradable yarn with uniform openings. 1. 180-foot lengths or greater. 2. U-shaped staples: As standard with mulch blanket manufacturer 2.5 MULCH BINDER A. Asphalt binder for straw: AASHTO M140, M208. Emulsified: SS-1, CSS-1, MS-2, CMS-2, RS- 1, CRS-1, RS-2, CRS-2 B. Synthetic binder for use with wood cellulose fiber or straw Equal to Terra Tack 1, Grass Growers, Plainfield, New Jersey 07061; Soil - Gard, Alco Chemical Company, Philadelphia, Pennsylvania 19013 2.6 TOPSOIL A. Sandy Loam 1. Friable, fertile, dark, loamy soil, free of clay lumps, subsoil, stones, and other extraneous material and free of weeds and foreign grasses. Loam containing Dallisgrass, Johnsongrass or nutgrass will be rejected. 2. Physical properties as follows: a. Clay: between 7-27 percent. b. Silt: between 15-30 percent. c. Sand: less than 52 percent. d. Organic matter: between 4-12 percent of total dry weight. B. Sandy loam spread to a minimum depth of inch. C. Fine grade using stockpiled topsoil topdressed with sandy loam. 2.7 HERBICIDES A. Contractor will apply selective, non -selective, pre -emergent and post -emergent herbicides to provide a turf grass stand is acceptable. Contractor shall submit to Owner's representative a written list of herbicide schedule with justification, and "Material Safety Data Sheets". 2.8 WATER Potable water is available on the site. 2.9 COMPOST — pH Balanced -See Section 32 93 00, 2.5. Slayter Creek Park Phase it Turf and Grasses Anna, Texas 32 92 00-33 August 23, 2012 PART 3 -EXECUTION 3.1 PREPARING SOIL AND WEED REMOVAL A. During hauling operations, keep walkway and roadway surfaces clean. Promptly remove topsoil or other material. After completion of construction work in the area, prepare surface of subsoil. Finish to lines shown and parallel to proposed finished grade, as approved. B. Weed removal: 1. If site has been freshly graded, water site for minimum two weeks to encourage weed germination and growth. (If site was graded more than four (4) weeks prior, watering is not needed to encourage weed growth.) 2. Area scheduled for lawn grass: Totally remove all grasses and weeds, unless directed otherwise by Owner's Representative. Apply a non -selective herbicide (e.g. "Roundup" or approved equal) to thoroughly exterminate existing grasses, weeds, or other vegetation (unless noted on the drawing or in the field by the Owner's Representative for protection)in area scheduled to receive lawn for grasses. 3. In area of existing trees to remain lightly scarify the soil to remove seedlings and other ground vegetation to a depth not to exceed 2-inch. If exposed roots are on the surface of the soil, DO NOT SCARIFY, C. Remove rocks and other foreign materials 1 inch or greater in any dimension. Immediately prior to covering with topsoil, loosen prepared surfaces to a minimum depth of four inches. Leave no depressions. D. Place and spread topsoil over areas to be seeded and sodded to depth which will conform to finish lines, grades and elevations after natural settlement. E. Do not drive over re-graded/scarified subsoil clays- dump topsoil on the outside of the site and with a tractor/dozer push topsoil onto scarified clays. Make equipment ride on top of topsoil as this will allow topsoil to partially mix with subsoil clays creating an interface layer instead of a compacted pan layer. F. When placing topsoil on slopes, work topsoil into subsoil to minimum depth of 4-inches to eliminate slip -plane between two materials. Leave topsoil at surface to ensure germination of seed. G. After spreading topsoil, rake up and remove large stiff clods, hard lumps, large rocks, roots, stumps, litter, and other foreign matter. Leave no depressions, ruts, soft spots or humps. Maintain positive drainage on site. H. Topdress with sandy loam at minimum'/2 inch depth to produce level surface. I. Apply 1-1 /2 to 2 inches of compost and lightly disc into sandy loam and topsoil. Till or disk topsoil and compost to 54nch minimum depth into existing subsoil to eliminate slip -plane between the three materials and to prepare an acceptable bed for sod. Make a minimum of one pass to break up clods and integrate compost evenly into the existing soil. Penetration of soil to a depth of 54nch is desired to encourage dormant seed grass and weed growth. Do not till if soil is wet. J. Fine grade for level, smooth seed bed. K. Second weed and grass removal in areas scheduled for sodded grass: Water tilled and fine graded areas to receive grass 3 weeks prior to sodding to encourage additional disturbed weed and native grass germination and growth. Totally remove all grasses and weeds, unless directed otherwise by Owner's Representative. L. If weeds should germinate prior to sodding, re -apply herbicide to eradicate weeds, but do not injure grass. M. Maintain specified depth of topsoil from time placed until specified seed or sod is established. N. If soil or weather conditions are unsuitable, cease topsoil operations. Resume topsoil operations when proper conditions prevail. O. Apply a pre -emergent herbicide prior to sodding. 3.2 LAWN SEEDING A. Hydroseeding. 1. Preferred method to be used in all seeding unless written approval received. 2. Seed bed preparation: After placing topsoil as specified, proceed as follows: a. Spraying equipment: Clean hydroseeders as approved prior to coming on site. Use water tank equipped with liquid -level gauge calibrated in increments not larger than 50 gallons over entire range of tank capacity with gauge visible to nozzle operator. Slayter Creek Park Phase II Turf and Grasses Anna, Texas 32 92 00-34 August 23, 2012 Use tank equipped with agitation system capable of maintaining solids in complete suspension until used. b. Fertilizing and seeding: (1) Apply fertilizer at 20 pounds per 1,000 square feet. (2) Apply Bermuda grass (hulled) seed at the rate of two (2) pounds per one thousand (1,000) square feet (Chart 32 92 00 - 3). (3) Mix seed and fertilizer together in proportions specified, add mulch to seed and fertilizer mixture. Wood cellulose fiber at the rate of 50 pounds per 1,000 square feet. c. Agitate mixtures constantly from time mixed until application. Use mixtures within eight hours after mixing. d. Application method: (1) Spray mixtures of seed and commercial fertilizer on previously prepared seed beds. (2) Apply mixtures by means of high- pressure spray directed upward into air so that mixtures fall to ground in uniform spray. Directing nozzle of hand-held hose toward ground in manner that would produce erosion or runoff is prohibited. (3) Make uniform application at specified rate to prevent misses. (4) Utilize batter board against planting beds and walks. B. Seeding from September 1 to April 15 1. From September 15 to April 15 substitute Common Bermuda (hulled) with a mix of Perennial Ryegrass (Lolium perenne) and unhulled Bermudagrass (Cynodon dactylon) seed mix. Sow seed mix at a rate of 6 pounds Perennial Ryegrass per 1,000 square feet and 2 pounds non -hulled Bermudagrass per 1,000 square feet. 2. Seed may be broadcast with mechanical seeder. 3.3 SODDING A. Sod bed preparation: 1. Place topsoil, sandy loam and compost as specified in Subsection 3.1. 2. Apply fertilizer at a per/acre rate determined by approved soil test and mix to depth of four inches minimum. 3. Compact topsoil with lawn roller or tractor roller to 3-inches of final compacted thickness as approved. B. Laying Sod: 1. Time frame for laying sod is year round if needed, except under conditions noted below. Lawn areas: Sod varieties identical to Sod No. One, Table 32 92 00-2, at the end of this section. 2. Extend or reduce specified period as approved and as necessitated by weather and soil conditions. 3. Final selection of sod: As approved. 4. Do not lay sod when sodding area is muddy or frozen nor when sod is frozen. When soil surface is hot or dry, wet soil to a depth of 2-inches, six to eight hours prior to sodding. 5. Lift sod from trucks or storage piles and place by hand with close joints and no overlapping. When Beck Roll of sod is used, lay as specified and in accordance with the suppliers instructions. 6. Lay first row of sod in straight line. Place subsequent rows parallel to and tightly against each other. Stagger lateral joints to promote more uniform growth and strength. Do not stretch sod. On slopes, lay sod parallel to contours of slope. 7. Peg sod placed on slopes 2:1 or greater. Peg each strip or section of sod with at least two stakes not more than 2 feet apart. Use stakes 1/2 inch by one inch by 12 inches driven flush with top of sod so that roots are in contact with topsoil. 8. Water sod immediately to prevent excessive drying during progress of work. Sod which dries out will be rejected. 9. Roll entire area as sodding is completed in one section so that sod is without surface irregularities, such as depressions and high spots. 10. Irrigate immediately after rolling to wet underside of sod and 1 inch of soil immediately below. Slayter Creek Park Phase II Turf and Grasses Anna, Texas 32 92 00-35 August 23, 2012 3.4 ESTABLISHMENT PERIOD AND REPLACEMENT A. The establishment period for seeding and sodding shall commence during installation and continue for a period of 100 days for work performed in the spring and summer, and for a period of 90 days of active growing weather for work performed in the fall and winter. B. Maintain seeding, sodding, and incidental work by performing the following and other operations of care necessary for promotion of growth so that work is in an approved condition throughout establishment period; uniform in color, quality, and coverage; and free of weeds, insects, diseases, surface damage, and other imperfections. 1. Watering: Provide labor and materials for establishment watering. a. First week: Perform watering daily to keep soil on sod pads continuously moist and to maintain moist topsoil to a depth of at least 4 inches. Water during heat of day to help prevent wilting or as approved. Water may be needed more than once a day depending on weather conditions. b. Remaining weeks: Perform watering weekly or as directed to keep sod or grass from silting. Water during heat of day to help prevent wilting or as approved. 2. Mowing: a. Do not mow until seed or sod is firmly rooted and securely in place and has grown to height of four inches. b. Mow to height of two inches at first cutting. Thereafter, do not remove more than 1 /3 of grass leaf at any cutting. c. Maintain Common Bermuda between height of 1 1 /2 and 2 1 /2 inches, unless otherwise directed. 3. Edging: Edge walks during alternate mowings. 4. Rolling: Roll to maintain uniform surface. 5. Applying herbicides: a. Apply in spray form by certified applicator. b. Do not apply when temperature exceeds 80 deg. For during periods of drought. 6. Replacing seeding and sodding: a. During establishment period, replace seeded and sodded areas that are dead or are in an unhealthy, unsightly, or badly impaired condition as soon as possible during specified planting seasons. b. Make such replacements in the same manner as specified for original seeding and sodding. 3.5 CLEAN-UP A. Daily removal of rubbish and debris caused by this work from the site. B. Keep site clean during establishment period. 3.6 FINAL ACCEPTANCE A. Due to seasonal requirements, final acceptance of this section may not coincide with that of the remaining contract work. B. Request inspection for final acceptance at least 10 calendar days before the end of the establishment period. C. Final acceptance shall be considered the time at which sodding and seeding, cleanup, and establishment period are 100% completed. Final acceptance shall be considered the time at which warm season turfgrass areas and seed mix areas are 100% established, and weed, pest and disease free with complete lush cover and no exposed soil areas showing. Weeds shall not occupy more than 5% of any 40'x40' test area. D. Replace rejected seeded and sodded areas as specified so that repair or replacement is rooted and established prior to approval. Slayter Creek Park Phase II Turf and Grasses Anna, Texas 32 92 00-36 August 23, 2012 This chart indicates minimum length of time by which material samples must be submitted for approval before intended use and minimum quantity of each. Usable samples will be returned. ITEM TIME QUANTITY COMMENT SEED 10 days 1 pound SOD 7 days 3 square feet FERTILIZER 14 days 3 pounds Provide sample of each type of fertilizer used MULCH 7 days 3 pounds Wood cellulose fiber mulch MULCH BINDER 14 days 1 /2 pint Synthetic binder TOPSOIL 14 days 3 pounds HERBICIDE 7 days 1 /2 pint Unopened container OTHER MATERIAL 7 days As directed or as approved. TABLE 32 92 00-2 GRASS SEED MATERIALS - SEP 15 TO APR 15 SPECIES MINIMUM MAXIMUM WEED SEED MINIMUM GUARANTEED PURITY AND OTHER CROP GUARANTEED GERMINATION Perennial Ryegrass 98% 0.2% 85% Lolium perenne Common Bermuda grass - 98% 0.2% 85% UNHULLED GRASS SEED MATERIALS -APR 15 TO SEP 15 Common Bermuda grass - 98% 0.2% 85% HULLED GRASS -SOD MATERIALS Common Bermuda grass C nodon dact Ion END OF SECTION Slayter Creek Park Phase II Turf and Grasses Anna, Texas 32 92 00-37 August 23, 2012 O'.ou`YO03ca otLU4OcOEypuId!� C�QdQQCUUUjUUUe'UOu- yeOOd W�wMOM�OWNOvnPOONNPOmO00NNVVrosi MwbOOaH�OMoaWwOhOOOu�0prUmayvaNv04l .MWrP»Mw0�OvVM�OPONOO005MNmMOACvva e.b4OOPNO»v0NwOOOPNNNOK[NOPONUqnQcmO4TI KObOweMwOOOOPP0Opa4s bCeNCtOO^NOOmvmhP0O1O9o4aaI NVt•wPOhOmOmtOoMn0O.p''•R]:it� VMNMwwwmOOoNONmN0m0�wp0NCa0+i, NN0`OOHONNOO^o0iVA Od✓eOWOOw0NO�M0�Omsai _UO3vO� wN�✓OrvON0OOwN0hVM v4i wNwbMwweNONfVN00oOVN0OONafV9ai NHN0nIONpOPOOhM'an Qvmc£vEdN nMOOwmbO0Oo7Oe0wv1NO<h(0OOoa �44l wNWO.OhNOOWOOb000O00oNewO•000N_nRo4 wMdWm seWwb�MOmOm_NOmNO0O0PWNop000RGo-4 34d1 wwN'�N.NOOOO0000OmooaaO000N- oa`mOOVOOooPNN^ � _o=aaoKOOVb00o0dOONVOO'h`MoOOO4 Q aH- 0aa"o' e�wVNmOOOONONO0N000SOO`3q i ' oaNN^NOOOOooO ::QaKMNN`fpN1Np`QOs'hC�VOOf•• N Nmb m P � pp O O '000 tel NmrOOO G p M N W < Y .= P K m NCO N u a N xQ N Vf VT 6NN66Oth_OMON_O•amV''3\Ocb90 P N 1� m m N m O `0 h P Nm I•i O C O O N �N nmmO O O r- M n CO! 00 n N CI O ci OOV� ON 0993 O co o O 0U VT 69 O U O t0 o6 CI 06 oOOO O MNN 0 m O dm O CJ N ui O O O CI vOOOO n NP% O Q M N N C O Y ^ Oo N OV Mm O Q y K 69 COO O O m O O O fV W O ON (V[pNN O O b dOM N NN Ci O O O O C O VOo ip ti a N�y h N m o vO O CO: O O ORO N M l M M M U 4nNeo Nv o00 0 0 m O m a 'C. N all cOi hbn O ORIr COct CO, M P O Y hh 4 CI d^l co n owMo M C') On N 00 n U hN 043 e'1 no Q O p p wi OOD Od V 0 0N0 O o 0 m '- O N m N G m ^ N V fV N .O,N•O `OQ rOOOO N N POOP 'Vr va6 M AP < Q W U < < —a Z o o 'o mg o m o N OtOO a OtOO v gv U.- 0 vO U L UeCVa Z « O a NazcO aE f du 0-0 dO N On M ow OPMO = m v u U O ° N am a c c c b ° o oa CL �c9 o m N 'm_ O O EE v -o o Z O N N m N M V N m Y{OiT7R} HOMETOW N Council Meeting: September 25, 2012 Account Code #: 50-631-6941 Budgeted Amount: $2,100,000 Item No. 11 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution approving Change Order No. 1 with Parkscape Construction Inc. SUMMARY: The low bid for the ball field and parking lot construction in the Slayter Creek Park, Phase II project was $275K higher than the budget estimate. We have negotiated a change order with Parkscape Construction that will reduce the contract price by about $172K. As of the writing of this memo, we are still discussing the proposed change order with contractor and will provide the Council a revised Change Order exhibit during the meeting. In addition, we will not authorize the purchase and installation of the multi -purpose field lighting ($126,000) unless we can verify that we will have enough funds in the project budget to construct all of the other required park elements. RECOMMENDATION: Staff recommends approval of the attached Resolution and Change Order. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING CHANGE ORDER NO. 1 FOR THE SLAYTER CREEK PARK, PHASE II PROJECT. WHEREAS, the City of Anna, Texas (the City) has approved a contract with Parkscape Construction Inc. (the "Contractor") for the construction of Slayter Creek Park, Phase II (the 'Project"); and, WHEREAS, the City and the Contractor desire to amend the contract scope and price through a change order to the construction contract; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THATff : Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval of Change Order. The City Council hereby Construction Inc. attache d contract with Parkscape ratifies and approves the authorized to execute all ;t under, and enforce the PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 25t" day of September 2012. ATTEST: Natha Wilkison, City Secretary APPROVED: Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 Date of Issuance: 09/19/12 Effective Daten09/26112 Owner: City of Anna, TX Project: Slayter Creek Park Phase II Improvements Contract changes are approved as follows: Description of changes: Reduction in paved parking spaces (47 total) in proposed north and east parking lots. Reduced sidewalk improvements around the concession stand. Removal of 690 LF of cable barrier fence. Reason for Change Order: Removing proposed scope items to match available funding. Attachments: Email summarizing cost reductions for valve items and scope reductions. CONTRACT PRICING Original Contract Amount including Add/Alternates: $1,190,713.10 Net Increase from Previous Change Orders: $0 Contract Price Prior to this Change Order: $11190,713.10 Net Increase/Decrease of this Change Order: -$ 172,704.19 Contract Price with All Approved Change Orders: $1 ,01 81008091 City of Anna, TX By: Date: Parkscape Construction, Inc. Philip Sanders, City Manager By: Cindy Craig Please sign both copies; c/o Maurice Schwanke PO Box 776 Anna, TX 75409-0776 Date: City of return one copy to: Anna, TX X{OUR} HOMETOWN Council Meeting: September 25, 2012 Account Code #: 50-631-6941 Budgeted Amount: $301,560 Item No. 12 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution awarding a bid and approving a contract for the Slayter Creek Trail, Phase II Project. SUMMARY: Last fall the City was awarded a grant to construct an extension of Slayter Creels Trail from Hackberry Lane south to the Willow Creek private park on Acacia Drive. Bids were opened on September 13 where a total of nine bids were received as shown on the attached Bid Summary sheet. The low bid was submitted by Redman Concrete in the amount of $175,000. RECOMMENDATION: The Public Works Director has checked references provided in the bid, and has found that Redman Concrete has a record of satisfactorily completing projects similar to this project; and they appear to have the necessary equipment and appropriate financial means to properly pursue this work. Staff recommends approval of the attached Resolution which awards the construction contract to the lowest responsible bidder Redman Concrete in the amount $175,000. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A CONTRACT WITH REDMAN CONCRETE FOR THE SLAYTER CREEK TRAIL, PHASE II PROJECT. WHEREAS, the City of Anna, Texas (the City) has received a grant from Collin County to construct an extension to the Slayter Creek Trail (the "Project"); and, WHEREAS, the City Council of the of the City of Anna, Texas (the City Council) authorized the Staff to solicit competitive bids for the Project; and, WHEREAS, the City, having solicited competitive bids in accordance with State law, opened said bids on September 13, 2012; and, WHEREAS, Redman Concrete is the apparent low bidder having submitted a bid of $175,000; and, WHEREAS, the City Council desires to award the Project bid to and execute a contract with Redman Concrete for construction of the Project; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval and Authorization of Contract. The City Council hereby approves the Contract attached hereto as Exhibit 1 for the Slayter Creek Trail, Phase II Project, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Contract. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 25t" day of September 2012. ATTEST: Natha Wilkison, City Secretary APPROVED: Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 CITY OF ANNA, TEXAS BID, SPECIFICATION, AND CONTRACT DOCUMENTS FOR: Slayter Creek Trail, Phase II TABLE OF CONTENTS INVITATIONTO BID.................................................................................................................... 1 NOTICE TO BIDDERS................................................................................................................. 2 Section 1. BIDS : ..... 2 ................................................................................................................ Section 2. CONTRACT DOCUMENTS : ... Moo* Remove ....... seem ...... Mae .. amasses .. too mama ..............................0 2 Section 3. PLANS FOR USE BY BIDDER: 9 a 0 0 a a a 0 v 0 a 0 a a 0 0 a a a 6 a s a a 0 a 0 v 0 0 a 0 a 0 8 0 a a a 9 6 a 0 a a a a 2 Section 4. TIME AND ORDER FOR COMPLETION:... 09 Otsego moo Noe %Osseo me am mama Osseo mosmam Soo Re* a massumamem Mae 3 Section 5. TWO-YEAR MAINTENANCE BOND: a komsomotv 00 a** 0*00 *0 mesa mesa moves mass mama MOON messes sea 3 Section 6. PLANS FOR THE CONTRACTOR. 3 Section 7. PREPARATION OF PROPOSAL: 3 Section8. BID SECURITY.. Eon *a mom Mae comma Road so ESE smassum 66 Rest 60*0 most am 0*0 me Noe** Re mesa momasmammem mama messes 0 **am 0 0 a a 0 a a a 0 0 4 Section 9. LIQUIDATED DAMAGES FOR FAILURE TO ENTER INTO CONTRACT ............ 4 Section 10. TIME OF COMPLETION AND LIQUIDATED DAMAGES ...................................... 4 Section 11. PERFORMANCE AND PAYMENT BONDS. 4 Section 12. BIDDER'S KNOWLEDGE OF CONDITIONS. 5 Section 13. INTERPRETATION OF DOCUMENT:................................................................... 5 Section 14. AWARD OF CONTRACT.......... OR OR moons muestaul 6 esteem 0*0 to NWP*oo sea moose seems MEN me smas mama* 0 0 mmasssomm so as 5 Section 15. PROTECTION OF THE PUBLIC. 5 Section 16. AFFIDAVIT AGAINST PROHIBITED ACTS. 5 Section17. ENGINEER:........................................................................................................... 5 Section 18. AMERICAN DISABILITIES ACT, 6 Section 19. MISCELLANEOUS................................................................................................ 6 QUALIFICATION STATEMENT OF BIDDERS............................................................................. 8 QUALIFICATION STATEMENT OF BIDDER'S SURETY.......................................................... 11 PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA, TEXAS ............. 12 VENDORS COMPLIANCE TO STATE LAW.............................................................................. 14 CONFLICT OF INTEREST QUESTIONNAIRE.......................................................................... 15 AFFIDAVIT AGAINST PROHIBITED ACTS............................................................................... 18 PROPOSAL AND BID FORM..................................................................................................... 19 REQUEST FOR CERTIFICATE OF EXEMPTION FROM TEXAS LIMITED SALES, EXCISE AND USETAX............................................................................................................................. 26 CONTRACTAGREEMENT. . 0 a a 9 a a 0 a 0 a 0 0 a 0 a a a 0 a a 0 a a 0 a a a 0 9 a a 0 a 0 6 a 0 6 0 a 6 0 0 N 0 0 w 0 0 0 a 0 a a 0 a 0 v a 0 0 a a a 0 a 0 a 0 a 0 a 0 2 a a 0 a 0 a 0 a 0 0 a 0 a a a a a a a 0 0 0 a a a a a 0 27 Section 1. DOCUMENTS INCORPORATED BY REFERENCE ........................................... 27 Section 2. REPRESENTATIONS OF THE CONTRACTOR ................................................. 28 Section 3. INTENT AND INTERPRETATION.sesames ... mass EWE ... old .... we* ................................. sea ...R 28 Section 4. CONTRACTOR'S PERFORMANCE............ ROAM seem me ago mason a a a a a a 0 a a a 0 a 0 a 0 a 0 a 0 a a 0 9 a 9 9 a a a a a a a a 0 a a 0 29 Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS ................................. 30 Section 6. FIXED PRICE AND CONTRACT PAYMENTS .................................................... 32 Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY ............................... 34 Section 8. CEASE AND DESIST ORDER/OWNER'S RIGHT TO PERFORM WORK ...ammo.. 35 Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES. 0 Oman NINE DOME 35 Section 10. INDEMNITY... messes sea me mamaosommommum assesses Oman MESSINA 0 Wong mass 0#0 1* 6460 %NWNVN* ones OWN moo a a 0 R a 0 0 a a a 0 0 0 0 a 0 0 a a 0 a a 0 39 Section 11. CLAIMS BY THE CONTRACTOR....................................................................... 39 Section 12. SUBCONTRACTORS...... logos** age ROSSO 020*MMSMBMSM on mom on Soso be blow 90*0* sea assesses am am a Re soon a 0 sea 0 00 Note a 40 Section 13. CHANGE ORDERS............................................................................................0 40 Section 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK .. 43 Section 15. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE ................... 44 Section 16. TERMINATION BY THE CITY............................................................................. 44 Section17. INSURANCE....... Re we Mmum nosom mom on on sets *ago are &**Do we**** 0 v a 0 a a a 0 4 a a a 0 a a a 0 0 a a a 0 a a 6 a 0 N 0 a go*o*w*o#o*o a 0 me a Rose 0 0 # 0 46 Section 18. PERFORMANCE AND PAYMENT BONDS; SURETY BONDS .......................... 48 Section 19. PROJECT RECORDS......................................................................................... 48 Section 20. APPLICABLE LAW.............................................................................................. 49 Section 21. SUCCESSORS AND ASSIGNS.......................................................................... 49 Section 22. MISCELLANEOUS PROVISIONS....................................................................... 49 Section 23. ENTIRE AGREEMENT.. at *000040*0 a* ease am mumsmammon *OR **so base moo Enron ease **of 00 Monona ago me mass 0 0 sossm osmsom 50 Section24. SEVERABILITY................................................................................................... 50 Section25. WAIVER.. me 0 v a a 0 a 0 0 a 0 a o a 4 a a 0 a a a 0 a 0 a 9 a 0 a 0 a 0 6 a 0 a 0 0 * 0 0 * a w 0 * 0 *0 9 a * 9 0 * 0 0 * a 0 a a a a a a a 0 1 0 a a a a a a & a a 0 a a k 0 * 0 v 0 w v 0 o 0 0 a * 0 0 n 0 0 o a 0 0 0 a 0 50 BIDDER'S BOND....................................................................................................................... 51 PERFORMANCEBOND............................................................................................................ 53 PAYMENTBOND.......... a a a 0 0 a n 0 0 a a a I a a 0 a 0 a 0 a * a ft 9 * w 0 * a w 0 * 0 * 0 * a * 0 % * 0 0 0 p a 0 w R a a 0 a 0 0 0 a 0 a a 6 a 0 a a 0 * ft 0 & 0 a 6 * 0 v a w 0 * 0 * a R 0 0 0 * w a 4 0 4 a 0 0 4 0 4 0 a a am 0 0 a a 55 MAINTENANCEBOND** 8*0* R f a a a a v a a am as a 0 a 0 a 0 a a 0 a 0 a a a 66 key woo Ease no a t*04*ffiffiffil a me a a 0 0 a 0 a 0 a 0 a a a a a on a a v 0 a RON on so 0 a a 0 go w 57 CERTIFICATE OF INSURANCE................................................................................................ 59 NOTICETO PROCEED............................................................................................................. 62 CHANGEORDER...................................................................................................................... 63 SUPPLEMENTARY GENERAL PROVISIONS AND TECHNICAL SPECIFICATIONS. . a a 0 a a a a 0 a a 9 0 64 Section 1. SUPPLEMENTARY GENERAL PROVISIONS.................................................... 64 Section 2. TECHNICAL SPECIFICATIONS.......................................................................... 78 ii INVITATION TO BID The City of Anna is soliciting competitive sealed proposals (also referenced herein sometimes as "bids" or "proposals")' for the construction of the following project: Slayter Creek Trail, Phase II Pedestrian Trail & Bridge Construction Project The project consists of the Phase II expansion to the Slayter Creek Trail System. The improvements are generally described as 3,100 linear feet of 8 foot wide concrete trail and one (1) pedestrian steel bridge (80= feet long by 8-feet wide). Proposals must be delivered to the attention of the City Secretary for the City of Anna at 111 North Powell Parkway, Anna, Texas 75409, no later than the proposal submission deadline September 13, 2012 at 3:00 p.m. Any proposals received after the specified time will not be accepted. Timely proposals shall be publicly opened and read aloud in the City Council Chambers on September 13, 2012 at 3:00 p.m. Plans and specifications may be examined, without charge, or purchased at the office of the City Secretary located at 111 North Powell Parkway, Anna, Texas 75409. The cost for the documents are $20.00 per set for full-size documents and will be available beginning August 23, 2012 at 3:00 p.m. The cost of the plans and specifications is non-refundable. Submit check, cashier's check or money order for payment. Cash will not be accepted. Bidders must submit a cashier's check, certified check, or acceptable bidder's bond with their bid as a guarantee that the Bidder will enter into a contract for the project with the Owner within (10) days of Notice of Award of the contract. The security must be payable to the City of Anna in the amount of five percent (5%) of the bid submitted. Contractor must execute the contract, bonds and certificates of insurance on the forms provided in the Plans and specifications. Contractors for this project must pay no less than the prevailing wage rates for the area established by the Owner and included in the plans and specifications. In accordance with Texas Gov't Code Sec. 2253.021, the successful bidder will be required to furnish a performance bond in the amount of 100% of the total contract price in the event that said contract price exceeds $100,000 and a payment bond in the amount of 100% of the total contract price in the event that said contract price exceeds $25,000. If the contract price does not exceed these amounts, the respective statutory bonds will not be required. It shall be each bidder's responsibility to inspect the site of the work and to become fully informed regarding all local conditions under which the work for this project is to be done. The City reserves the right to reject any and all bids. CITY OF ANNA, TEXAS ' Regardless of whether the word "bid" or proposal is used in this invitation or associated documents, the method of procurement is as set forth under Section 14.02 of the Notice to Bidders. 1 NOTICE TO BIDDERS Section 1. BIDS: 1.01 Competitive sealed bids (also referenced herein sometimes as "bids" or "proposals") must be delivered to the attention of the City Secretary for the City of Anna at 111 North Powell Parkway, Anna, Texas 75409, no later than the proposal submission deadline of September 13, 2012 at 3:00 p.m. Any proposals received after the specified time will not be accepted. Timely proposals shall be publicly opened and read aloud in the City Council Chambers September 13, 2012 at 3*00 p.m. for the following project: Slayter Creek Trail, Phase 11 Pedestrian Trail &Bridge Construction Project The project consists of the Phase II expansion to the Slayter Creek Trail System. The improvements are generally described as 3,100 linear feet of 8 foot wide concrete trail and one (1) pedestrian steel bridge (M feet long by 8-feet wide). 1.02 Proposals shall be on the form provided for that purpose and shall be enclosed in two sealed envelopes, one within the other, each clearly marked so as to guard against opening prior to the time set therefor. The bidder shall also be responsible for placing the bidder's firm/entity name on the outside of both such proposal envelopes. The original proposal with three (3) copies shall be provided. 1.03 Proposals which are incomplete, unbalanced, conditional, obscure, or which contain additions not called for, alterations or irregularities of any kind, or which do not comply with the Contract Documents may be rejected at the option of the Owner. 1.04 Each bid shall be signed, on behalf of the individual, partnership or corporation making the proposal, by the person or persons legally authorized to sign the bid document and thereby bind the maker in full responsibility therefor. The address of the individual, partnership or corporation shall be appended and, upon demand, the names and addresses of all members of a partnership or the corporate officers of a corporation shall be made known. 1.05 All questions regarding the process and the submission of proposals shall be directed to the Purchasing Agent in the Municipal Building, 111 N. Powell Parkway, Anna, Texas 75409, telephone number (972) 924-3325. Section 2. CONTRACT DOCUMENTS: 2.01 All work associated with this project shall be done in accordance with contract documents described in the Contract Agreement. 2.02 All bidders shall be thoroughly familiar with all of the requirements set forth on the contract documents for the construction of this project and shall be responsible for the satisfactory completion of all work contemplated by said contract documents. Section 3. PLANS FOR USE BY BIDDER: It is the intent of the City of Anna that all parties with an interest in submitting a bid on the project covered by the contract documents be given a reasonable opportunity to examine the documents and prepare a bid without charge. The contract documents may be examined without charge as noted in the Invitation to Bid. �a Section 4. TIME AND ORDER FOR COMPLETION: 4.01 The construction covered by the contract documents shall be fully complete within ninety (90) consecutive calendar days from the date specified in the Notice to Proceed issued by the City of Anna to the successful bidder. 4.02 The Contractor will be permitted to prosecute the work in the order of his own choosing, provided however, the City reserves the right to require the Contractor to submit a progress schedule of the work contemplated by the contract documents. In the event the City requires a progress schedule to be submitted and it is determined by the City that the progress of the work is not in accordance with the progress schedule so submitted, the City may direct the Contractor to take such action as the City deems necessary to insure completion of the project within the time specified. Section 5. TWO-YEAR MAINTENANCE BOND: Contractor shall furnish the City of Anna a maintenance bond to guarantee against defects in the construction or equipment furnished under the project for two years following acceptance. The bond shall be executed by a surety company holding a license to do business in the State of Texas and acceptable to the City of Anna, in an amount equal to one hundred (100) percent of the original contract price. Subsequently, and at the option of the City, the successful bidder may be required to furnish an additional maintenance bond or a replacement bond in an amount such that all maintenance bond(s) furnished hereunder equal the adjusted price of the contract based on change orders. Section 6. PLANS FOR THE CONTRACTOR: The Contractor will be furnished two sets of specifications, and related contract documents for his use during construction. Plans and specifications for use during construction will only be furnished directly to the Contractor. The Contractor shall then distribute copies of plans and specifications to suppliers, subcontractors, or others, as required for proper prosecution of the work contemplated by the Contractor. Section 7. PREPARATION OF PROPOSAL: 7.01 The bidder shall submit his proposal on forms furnished by the City. All blank spaces in the form shall be correctly filled in and the bidder shall state the price both in words and numerals, for which he proposes to do the work contemplated or furnish the materials required. Such prices shall be written in ink, distinctly and legibly, or typewritten. In case of discrepancy between the price written in words and the price written in numerals, the price written in words shall govern. If the proposal is submitted by an individual, his name must be signed by him or his duly authorized agent. If a proposal is submitted by a firm, association, or partnership, the name and address of each member must be given and the proposal signed by a member of the firm, association or partnership, or person duly authorized. 7.02 The successful bidder is required to provide segregated amounts for cost of labor and other services from materials and other tangible personal property to be ultimately consumed in this project. 3 7003 If the proposal is submitted by a company or corporation, the company or corporate name and business address must be given, and the proposal signed by an official or duly authorized agent. Where applicable, Powers of Attorney authorizing agents or others to sign proposals must be properly certified and must be in writing and submitted with the proposal. 7.04 The proposal shall be executed envelope, addressed as specified in the envelope in the following manner: a) Bidder's name. in ink. Each proposal shall be enclosed in a sealed the Notice to Bidders, and endorsed on the outside of b) Proposal for: Slayter Creek Trail, Phase II 7.05 Bid proposals may be withdrawn and resubmitted at any time prior to the time set for opening of the bids, but no proposal may be withdrawn or altered thereafter. 7.06 All bidders must supply the following with their bids: a) Qualification Statement of Bidders. b) Qualification Statement of Bidder's Surety. c) Construction schedule. d) Current financial statement. Section 8. BID SECURITY: Each bid must be accompanied by a certified or cashier's check or an approved bidder's bond made payable to the owner in an amount of five (5%) percent of the largest possible total of the bid as a guarantee that, if awarded the contract, the bidder shall enter into a contract and execute all necessary bonds. Section 9. LIQUIDATED DAMAGES FOR FAILURE TO ENTER INTO CONTRACT The successful bidder, upon his failure to execute and deliver the contract and bonds required within 10 business days after he has received notice of the acceptance of his bid, shall forfeit to the Owner, as liquidated damages for such failure or refusal, the bid bond amount and any other security deposited with the bidder's proposal. Section 10. TIME OF COMPLETION AND LIQUIDATED DAMAGES Bidders must agree to commence work on or before a date to be specified in a written "Notice to Proceed" of the Owner and to fully complete the project within the specified time as stated in the proposal. Bidder must agree to pay liquidated damages as required in the contract documents for failure to timely commence work or complete the project. Section 11. PERFORMANCE AND PAYMENT BONDS: Performance and payment bonds are in the amount of not less than one hundred percent (100%) of the contract price conditioned upon the faithful performance of the contract, and upon payment of all persons supplying labor or furnishing materials, will be required upon the forms which are a part of the Contract Documents. Bonds shall be executed by a surety 4 company authorized to do business in the State of Texas and must have a registered Agent for Service located in the State of Texas. Owner shall approve bonds as to form. The Owner may, in its discretion, reject a surety it believes unacceptable; a failure to reject a surety who is unacceptable or fails to perform its obligations shall incur no liability to Owner. Section 12. BIDDER'S KNOWLEDGE OF CONDITIONS: Prior to submission of a proposal, bidders shall have made a thorough inspection of the site of the work and a thorough examination of the plans and specifications, and shall become informed as to the nature of the work, labor conditions, and all other matters that may affect the cost and time of completion of the work. Section 13. INTERPRETATION OF DOCUMENT: If any person contemplating submitting a bid is in doubt as to the meaning of any part of the plans, specifications, or other proposed contract documents, he may submit to the Engineer a written request for an interpretation thereof prior to seven (7) days of the time of opening of sealed bids. The person submitting the request will be responsible for its prompt delivery. Any interpretation of these documents will be made only by addendum duly issued and a copy of such addendum will be mailed or delivered to each person known to have received a set of such documents. The Engineer will not be responsible for any other explanations or interpretations. Section 14. AWARD OF CONTRACT: 14.01 It is the intent of the City of Anna that this project be completed as quickly and economically as is feasible. A tabulation of the bids received will be prepared for consideration by the City Council. 14.02 The successful bidder must submit both base and alternate base bids. Unless the bids are unreasonably high and/or the Owner rejects all bids, the Owner intends to award the contract promptly to the Lowest Responsible Bidder. The Owner retains the right to waive informalities and to reject any or all bids. Section 15. PROTECTION OF THE PUBLIC: For protection and convenience of the public and emergencies, the successful bidder shall furnish the City with a telephone number where the Contractor can be contacted 24 hours a day during the entire construction period of this project. This telephone number shall be furnished to the City in writing prior to the beginning of construction. Section 16. AFFIDAVIT AGAINST PROHIBITED ACTS: It shall be the successful bidder's responsibility to complete an affidavit against prohibited acts, on a form contained as part of the Contract Documents, prior to execution of the contract by the City of Anna. Failure to complete this form may prohibit the Contractor's ability to secure the contract. Section 17. ENGINEER: The term "Engineer" shall refer to the City Engineer or his authorized representative. ti� Section 18. AMERICAN DISABILITIES ACT: "Any person, firm business, partnership, or corporation that provides a service or function to the public or employees, agents or officials of the city of which is performed on behalf of the City of Anna, shall comply with 42 U.S.C. 1210-12213 and any amendments thereto, known as the "American Disabilities Act of 1990"." Section 19. MISCELLANEOUS 19.01 Proposals received in the City of Anna after submission deadline will be considered void and unacceptable. The City of Anna is not responsible for lateness or non. delivery of mail, carrier, etc., and the date/time stamp in City Hall shall be the official time of receipt. 19.02 A proposal may not be withdrawn or canceled by the bidder without the permission of the City for a period of sixty (60) days following the date designated for the receipt of proposals, and bidder so agrees upon submittal of their proposal. 19.03 The City of Anna is exempt by law from payment of Texas State Sales Tax and Federal Excise Tax. Bidder shall include any sales taxes from concession sales of taxable items on City property in the total price of the sale, and shall be responsible to report and pay such taxes in a timely manner. 19.04 No oral statement of any individual the terms, conditions or Specifications stated Change Orders to the Contract Agreement will Manager or his agent. shall modify or otherwise change, or affect in the resulting Contract Agreement. All be made in writing by approval of the City 19.05 If during the life of the Contract Agreement, the successful bidder's net prices to other customers for items awarded herein are reduced below the Contracted price, it is understood and agreed that the benefits of such reduction shall be extended to the City of Anna. 19.06 All delivery and freight charges (F.O.B. City of Anna) are to be included in the proposal price. 19.07 Proposals shall show number of days required to achieve Substantial Completion of the Project. Failure to state delivery time may cause proposal to be rejected. 19.08 Effective January 1, 2006, Chapter 176 of the Texas Local Government Code requires that any vendor or person considering doing business with a local government entity disclose in the Questionnaire Form CIQ, the vendor or person's affiliation or business relationship that might cause a conflict of interest with a local government entity. By law, this questionnaire must be filed with the records administrator of the City of Anna not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 19.09 The bidder shall not offer or accept gifts of anything of value nor enter into any business arrangement with any employee, official or agent of the City of Anna. 19.10 Proposals must comply with all federal, state, county, and local laws concerning these types of service(s). 19.11 Design, strength, quality of materials must conform to the highest standards of manufacturing and engineering practice. 19.12 All items supplied against credit must be new and unused, unless otherwise specified, in first-class condition and of current manufacturer. 19.13 Inspections of the project work will be made by the City or its independent contractors to ensure compliance with all applicable laws and regulations, and the specifications of this project. 19.14 Successful bidder shall defend, indemnify and save harmless the City of Anna and all its officers, agents and employees from all suits, actions, or other claims of any character, name and description brought for or on account of any iniuries or damages received or sustained by any person, persons, or property on account of any negligent act or fault of the successful bidder, or of any agent, employee, subcontractor or supplier in the execution of, or performance under, any Contract which may result from proposal award. Successful bidder indemnifies and will indemnify and save harmless the City from liability, claim or demand on their part, agents, servants, customers, and/or employees whether such liability, claim or demand arise from event or casualty happening or within the occupied premises themselves or happening upon or in any of the halls, elevators, entrances, stairways or approaches of or to the facilities within which the occupied premises are located. Successful bidder shall pay any judgment with costs which may be obtained against the City growing out of such injury or damages. In addition, successful bidder shall obtain and file with Owner City of Anna a Standard Certificate of Insurance and applicable policy endorsement evidencing the required coverage and naming the owner City of Anna as an additional insured on the required coverage. Each insurance policy to be furnished by successful bidder shall include, by endorsement to the policy, a statement that a notice shall be given to the City of Anna by Certified Mail thirty (30) days prior to cancellation or upon any material change in coverage. 19.15 Successful Bidder shall pay or cause to be paid, without cost or expense to the City of Anna, all Social Security, Unemployment and Federal Income Withholding Taxes of all such employees and all such employees shall be paid wages and benefits as required by Federal and/or State Law. 19.16 Specifications and model numbers are for description only. Bidder may propose on description only. Bidder may propose on alternate model but must clearly indicate alternate model being proposed. Bidder must enclose full descriptive literature on alternate item(s). 19.17 The apparent silence of specifications as to any detail or to the apparent omission of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practices are to prevail. All interpretations of specifications shall be made on the basis of this statement. ANY QUESTIONS concerning the Invitation for Bids and Notice to Bidders should be directed to: James Parkman, Director of Public Works City of Anna jparkman(annatexas.gov (972) 9244510 QUALIFICATION STATEMENT OF BIDDERS SUBMITTED TO: City of Anna Reviewed by: _ Date Received: CONTRACTOR: CIRCLE ONE NAME: _ ADDRESS: CITY: Sole Proprietor Partnership Corporation Joint Venture PHONE: PRINCIPAL PLACE OF BUSINESS: PARTNER: ADDRESS: CITY: PHONE: PRINCIPAL PLACE OF BUSINESS: COUNTY STATE COUNTY STATE IF THE CONTRACTOR IS A CORPORATION, FILL OUT THE FOLLOWING: STATE OF INCORPORATION: LOCATION OF PRINCIPAL OFFICE: CONTACT PERSONS AT OFFICE. PERSON EXECUTING CONTRACTS ON NAME: TITLE: BEHALF OF CORPORATION: PHONE: NAMES OF OFFICERS: (IF APPLICABLE) ADDRESS: CITY STATE ZIP LIST NUMBER OF EMPLOYEES WORKING FOR CONTRACTOR: LIST ALL EQUIPMENT TO BE USED ON THIS PROJECT: (PLEASE USE ATTACHMENT) NUMBER OF YEARS IN BUSINESS AS A GENERAL CONTRACTOR ON PROJECTS SIMILAR TO THIS PROJECT: TYPES) OF WORK DONE: (CIRCLE) Asphalt Paving Concrete Paving Misc. Concrete Channel Lining Pump Stations Concrete Structures: Inlets, Public Facilities (list types): Other: Storm Sewer Earth Work Bridge Work Demolition Landscaping Box Culverts, Junction Boxes Water &Sanitary Sewer Lines Steel Erection Painting Fog Seal Chip Seal 0 LIST RECENTLY COMPLETED PROJECTS OF THE TYPE OF WORK QUALIFYING FOR OR SIMILAR WORK, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: PROJECT: OWNER/ENGINEER: YEAR BUILT: CONTACT PERSON: CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: CONTRACT PRICE: I=C•1>•L� CONTRACT PRICE: PHONE: (USE ATTACHMENTS IF NECESSARY) LIST INCOMPLETE PROJECTS, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT LISTED: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: PROJECT: OWNER/ENGINEER: _ PERCENT COMPLETE: CONTACT PERSON: CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: CONTRACT PRICE: PHONE: USE ATTACHMENTS IF NECESSARY) IF COMPANY IS UNDER NEW MANAGEMENT, PLEASE LIST NAMES OF STAFF AND QUALIFICATION AND/OR EXPERIENCE OF SAID PERSONS. (PLEASE USE ATTACHMENT.) HAVE YOU OR ANY PRESENT PARTNERS) OR OFFICERS) FAILED TO COMPLETE A CONTRACT? IF SO, NAME OF OWNER AND/OR SURETY: CONTACT PERSON: PHONE: ARE THERE ANY UNSATISFIED DEMANDS UPON YOU AS TO YOUR ACCOUNTS PAYABLE? IF SO, GIVE NAMES, AMOUNTS, AND EXPLANATIONS. BANK REFERENCE Bank: Address: City: Contact Person. Phone: MUNICIPALITY REFERENCE Contact Person: Address: City: OTHER CREDIT REFERENCES: Name: Address: Name: _ Address: Phone: Phone: State: Zip: Position: Phone: In compliance with Invitation to Bid for above mentioned types of projects, the undersigned is submitting the information as required with the understanding that the purpose is only to assist in determining the qualifications for this organization to perform the type and magnitude of work designated, and further, guarantee the truth and accuracy of all statements made, and will accept your determination of qualifications without prejudice. The surety herein named, any other bonding company, bank, sub -contractor, supplier, or any other person(s), firm(s) or corporations with whom I (we) have done business, or who have extended any credit to me (us) are hereby authorized to furnish you with any information you may request concerning performance on previous work and my (our) credit standing with any of them; and I (we) hereby release any and all such parties from any legal responsibility whatsoever on account of having furnished such information to you. Signed: Title: Company: Date: COPY TO LOCAL UNDERWRITING OFFICE OF PROPOSED SURETY Name: _ Address: Phone: City: _ State: 10 QUALIFICATION STATEMENT OF BIDDER'S SURETY SUBMITTED TO: City of Anna BIDDER: _ ADDRESS: PHONE: 1 2 3 Has this surety furnished contract bonds on contracts now complete? Has this surety furnished contract bonds on contracts now incomplete? What is the maximum bonding capacity of this Contractor? Is the current financial information on this Contractor satisfactory? 5. Does information obtained indicate accounts are paid when due? If not, give details: 6. Is it your opinion that the satisfactory perform the contract? bidder has sufficient experience and financial resources to 7. Provided this bidder does not assume other commitments or that you do not acquire further information that in your opinion will materially affect the bidder's capacity to perform this contract, will you furnish the bonds as specified? REMARKS: SURETY: SIGNED: TITLE: CITY PHONE: (IN DUPLICATE) STATE PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA,TEXAS General Decision: TX20080057 Date: September 11, 2009 Construction Types: Building Counties: Collin and Denton Counties in Texas. Rates are for Building construction projects only. For other wage rates or for updated rates, please the Texas General Decision County Index located at http://www.gpo.gov/davisbacon/tx.htmi Rates $ Fringes Acoustical Installer 12.27 0.00 Carpenter (Excluding Acoustical Installers & Drywall Hangers 12.36 1.38 Drywall Hanger 12.17 0.00 Electrician 13.10 1.97 Laborer, Unskilled (Excluding Landscape Laborers) 7.25 0.86 Painter: Brush & Spray 10.15 0200 Painters doing drywall finishing only 10.08 0.00 Paperhanger 12.50 2020 Plumbers and Pipefitters (Including HVAC Work) 12.47 1.87 Power Equipment Operator (Cranes) 15.00 2.85 Roofer, Including Built Up, Composition and Single Ply Roofs 10.17 1.10 Sheet Metal Worker (Including HVAC Duct Work) 10.94 1.45 Sprinkler Fitter 12.00 2030 Welders —Receive rate prescribed for craft performing operation to which welding is incidental. 12 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. 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. 13 VENDORS COMPLIANCE TO STATE LAW Texas Government Code, Chapter 2252, Subchapter A provides that, in order to be awarded a contract as low bidder, non-resident bidders (out of state Contractors whose corporate offices or principal place of business are outside of the State of Texas) bid projects for construction, improvements, supplies or services in Texas at an amount lower than the lowest Texas resident bidder by the same amount that a Texas resident bidder would be required to underbid a non-resident bidder in order to obtain a comparable contract in the state in which the non-resident's principal place of business is located. The appropriate blanks in Section 4 must be filled out by all out-of-state or non-resident bidders in order for your bid to meet specifications. The failure of out-of-state or non-resident Contractors to do so will automatically disqualify that bidder. Resident bidders must check the box in Section B. A. Non-resident vendors in (give state), our principal place of business, are required to be percent lower than resident bidders by state law. A copy of the statute is attached. Non-resident vendors in (give state), our principal place of business, are not required to underbid resident bidders. B. Our principal place of business or corporate office is in the State of Texas. Company City Phone By: Signature: Title: State Zip (please print) (please print) THIS FORM MUST BE RETURNED WITH YOUR QUOTATION CONFLICT OF INTEREST QUESTIONNAIRE 15 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the taw by H.B. 14910 80th Leg., Regular Session. OFFICELISEONLY This questionnaire is being filed in accordance with Chapter 176, Local Government Code Date Received by a person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements underSection 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 21 ❑Check this box if you are filing an update toa 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 the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has employment or business relationship. Name of Officer This section (item 3 including subparts A, B, C & D) must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001 (1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? F7 Yes F7 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? O 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 10 percent or more? F1 Yes F] No D. Describe each employment or business relationship with the local government officer named in this section. 4 Signature of person doing business with the governmental entity Date AFFIDAVIT AGAINST PROHIBITED ACTS 17 92197MIXTHI&O -,MIA ' ' • I hereby affirm that I am aware of the provisions of Texas Penal Code Section 36.02, 36.08, 36.09 and 36.10 dealing with Bribery and Gifts to Public Servants. I further affirm that I will adhere to such rules and instruct and require all agents, employees, and sub -contractors to Jo the same. I am further aware that any violation of these rules subjects the Contract Agreement for this project to revocation, my removal from bid lists, prohibiting future contract/subcontract work, revocation of permits, and prosecution. Signature ATTEST (if corporation) Date Date m � � • � • 1 � � � � � � 19 Proposal of (hereinafter called "Bidder"). Address: To the Honorable Mayor and City Council City of Anna, Texas (hereinafter called "Owner") Deadline for Submission of Sealed Competitive Bid: 3:00 p.m. on September 13, 2012 Date of Sealed Bid Opening: 3:00 p.m.on September 13, 2012 Gentlemen: The Bidder, in compliance with your invitation for bids for the construction of: Slayter Creek Trail, Phase II Pedestrian Trail &Bridge Construction Project for the City of Anna, Texas, having carefully examined the plans, specifications, notice to bidders, invitation to bid and all other related contract documents and the site of the proposed work, and being familiar with all of the conditions surrounding the construction of the proposed project, including the availability of materials and labor, hereby proposes to furnish all labor, materials, and supplies; and to construct the project in accordance with the plans, specifications and contract documents, within the time set forth therein and at the prices stated. The Bidder binds himself on acceptance of his proposal to execute the Contract Agreement and any required bonds, according to the accompanying forms, for performing and completing the said work within the time stated and for the prices stated in Exhibit "A" of this proposal. Bidder hereby agrees to commence the work on the above project within ten (10) days of receipt of written "Notice to Proceed" and to fully complete the project wn ninety (90) consecutive calendar days, thereafter as stipulated in the specifications and other contract documents. Bidder hereby further agrees to pay to Owner as liquidated damages the sum specified in Item of the North Central Texas Council of Governments Standard Specifications for Public Works Construction, and quoted below, for each calendar day in excess of the time set forth hereinabove for completion of this project, all as more fully set forth in the general conditions of the contract documents. LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE ON TIME: The time of completion is of the essence for this project. For each day that any work shall remain uncompleted after the time specified in the proposal and the Contract Agreement, or the increased time granted by the OWNER, or as equitably increased by additional work or materials ordered after the Contract Agreement is signed, the sum per day given in the following schedule, unless otherwise specified in the special provisions, shall be deducted from the monies due the CONTRACTOR: 20 AMOUNT OF CONTRACT AMOUNT OF LIQUIDATED DAMAGES Less than $25,000.00 $100.00 Per Day $25,000.00 to $99,999.99 $160.00 Per Day $100,000.00 to $999,999.99 $240.00 Per Day More than $1,000,000.00 $500.00 Per Day The sum of money thus deducted for such delay, failure or non -completion is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages, per day that the CONTRACTOR shall be in default after the time stipulated in the Contract Agreement for completing the work. The said amounts are fixed and agreed upon by and between OWNER and CONTRACTOR because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the OWNER in such event would sustain; and said amounts are agreed to be the amounts of damages which the OWNER would sustain and which shall be retained from the monies due, or that may become due, the CONTRACTOR under the Contract Agreement; and if said monies be insufficient to cover the amount owing, then the CONTRACTOR or its surety shall pay any additional amounts due. In the event that the actual damages incurred by the OWNER exceed the amount of liquidated damages, OWNER shall be entitled to recover its actual damages. Bidder understands and agrees that this bid proposal shall be completed and submitted in accordance with the Instructions to Bidders. Bidder understands that the Owner reserves the right to reject any or all bids and to waive any informality in the bidding. The Bidder agrees that this bid shall be good and may not be withdrawn for a period of sixty (60) calendar days from date of bid opening until the date that the project is awarded by the City Council. The undersigned Bidder hereby declares that he has visited the site of the work and has carefully examined the plans, specifications, and contract documents pertaining to the work covered by this bid, and he further agrees to commence work on or before the date specified in the written notice to proceed, and to substantially complete the work on which he has proposed, as provided in the contract documents. Enclosed with this proposal is a Cashier's Check or Certified Check for: 5% Greatest Amount Bid Dollars ($5% GAB), which it is agreed shall be collected and retained by the Owner as liquidated damages in the event the proposal is accepted by the Owner and the undersigned fails to execute the necessary contract documents and the required bond (if any) with the Owner within ten (10) days after the date of receipt of written notification of acceptance of said proposal; otherwise, said check or bond shall be returned to the undersigned upon demand. 21 Bidder understands and agrees that the Contract Agreement to be executed by Bidder shall be bound and include all contract documents made available to him for his inspection in accordance with the Invitation to Bid. The Contractor's attention is called to the fact that any estimate of quantities of work to be done and materials to be furnished under the specifications as shown on the Proposal, or elsewhere, is approximate only and not guaranteed. The Owner does not assume any responsibility that the final quantities shall remain in strict accordance with the estimated quantities, nor shall the Contractor plead misunderstanding or deception because of such estimate of quantities or of the character, location of the work or other conditions pertaining thereto. Payment will be made on actual quantities installed at the unit bid price, and no claim will be made for anticipated profits for any decrease in profits. It is understood that the following quantities of work to be done at unit prices are approximate only, and are intended principally to serve as a guide in evaluating bids. It is further agreed that the quantities of work to be done at unit prices and materials to be furnished may be increased or diminished as may be considered necessary, in the opinion of the Engineer, to complete the work fully as planned and contemplated, and that all quantities of work, whether increased or decreased are to be performed at the unit bid prices. 22 BID -• -• FOR Slayter Creek Trail, Phase Ho a BID ITEMS ITEM NO. EST. QTY. UNIT DESCRIPTION UNIT PRICE AMOUNT 1 3,100 L.F. Construction of 8400t wide concrete trail 2 1 EA Fabrication and installation of steel pedestrian bridge Construction Schedule: Work must be completed with ninety (90) consecutive calendar days after notification period of 10-days has passed. 23 PROPOSALMBIT A, PAGE 2 BID •; Slayter Creek Trail, Phase II: Supplemental Scope of Work ** � Construction of Concrete Trails Contractor will provide all materials and labor necessary to construct 3,100 linear feet of 8 foot wide concrete trail. 1. The trail will be marked in the field and approved by the city for location. It is understood that the layout plan provided by the City is conceptual per Attachment 1. 2. The trail will be constructed with 4" 3600 PSI concrete with #3 rebar 12" on center on top of 2" of cushion sand and in all respects shall be in accordance with the standard detail in Attachment2. 3. All parts of the trail shall be constructed with a slope less than 1:20 (5%) unless the Contractor obtains specific written approval from the City. All sections of the trail shall be constructed by the Contractor to comply with applicable requirements of the Americans with Disabilities Act as amended. No part of the trail shall have a side slope greater than 1:50 (2%). 4. Contractor shall perform all site preparations including earthwork and clearing necessary for the installation and construction of the trail. 5. Contractor shall mulch all brush & timber for on -site distribution as directed by the City. 6. All sub -grades will be compacted and proof rolled for proper compaction. 7. Any water needed for construction will be provided by the City. 8. If pipe crossings are required to provide adequate drainage, the City shall provide the storm water pipe. The Contractor shall be responsible for the proper installation and grading associated with the installation of any required storm water pipe. 9. Contractor will hydro -seed all disturbed previously grassed areas adjacent to the trail to common Bermuda turf type. Installation/Construction of Steel Bridge Contract shall provide and install one (1) prefabricated pedestrian steel bridge (80 feet long by 8 feet wide) 1. The design and fabrication of the bridge shall be identical to the existing bridge fabricated by Lemons Company (400 Church Street, Whitesboro, Texas 76273; 903-564-5267; lemonscompanv@vahoo.com) that spans a drainage creek between the Brookshire's parking lot and Natural Springs Park as shown in Attachment 3. The 2. The bridge shall span the entire width the crossing between the trail and property owned by the Willow Creek homeowners association as shown on the site plan in Attachment 1. 3. The bridge abutments shall be constructed in accordance with the design provide by the City as shown in Attachment 4. Miscellaneous 1. Contractor's work shall include all engineered staking and all secondary staking to meet earthwork requirements and final field elevations. 2. Contractor shall provide a SWPPP plan and shall be responsible for proper implementation of the plan including silt fence installation, maintenance and removal. 24 EXHIBIT A, PAGE 3 BID PROPOSAL FOR Slayter Creek Trail, Phase II: Recapitulations TOTAL BASE BID Notice of award will be mailed to the undersigned at the following addresses: By: Contractor Principal Place of Business (Corp. Seal if Bidder is Corporation) Attest: Secretary: Acknowledgment is hereby made of receipt of the following Addenda, if any: No. No. Date: Date: Date: *Provide Name, Contact and Phone Number for the Company designing and fabricating the pedestrian steel bridge. Company Name Conta Phone List Subcontracts (Company name, contact number and type of work): 25 REQUEST FOR CERTIFICATE OF EXEMPTION FROM TEXAS LIMITED SALES, EXCISE AND USE TAX Date: TO: City of Anna, Texas Municipal Building 111 N. Powell Parkway Anna, TX 75409 RE: Slayter Creek Trail, Phase II: The undersigned Contractor hereby requests a Certificate of Limited Sales, Excise, and Use Tax in is an amount not exceeding the contract price of all materials property to be furnished in connection with the subject property. Exemption from the Texas the amount of ($ ) which and other tangible personal The undersigned hereby represents that such materials and property have been or will be utilized in the performance of the Contract Agreement to the full extent or the amount for which such Certificate of Exemption is requested. Company By: Signature: Title: Address: City Phone/Fax (Seal if Corporation) (Please Print) (Please Print) State Zip 26 CONTRACT AGREEMENT THIS Slavter Creek Trail, Phase II Pedestrian Trail & Bridae Construction Project Contract (hereinafter this "Contract Agreement") entered into this day of , 20_ by and between the CITY OF ANNA TEXAS a Texas municipal corporation, ("City") and located at. ("Contractor"). WITNESSETHa WHEREAS, the City wishes to contract for the project identified as Slavter Creek Trail, Phase II Pedestrian Trail & Bridge Construction Project (the "Project"); and WHEREAS, the Project shall include all work and activities necessary to construct 3,100 linear feet of 8 foot wide concrete trail; and to fabricate and install one (1) pedestrian steel bridge (80 feet long by 8 feet wide) in accordance with the Contract Documents as that term is defined herein; and WHEREAS, the Contractor has represented to the City that its personnel are qualified to provide the Work required in this Contract Agreement in a professional, timely manner as time is of the essence; and WHEREAS, the City has relied upon the above representations by the Contractor; and WHEREAS, the City's consulting engineer has recommended that an agreement for aforesaid construction be entered into with the Contractor; NOW, THEREFORE, for and in consideration of these premises, of the mutual covenants herein set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: Section 1. DOCUMENTS INCORPORATED BY REFERENCE This Contract Agreement includes the recitals set forth above and the following documents: Invitation to Bid; Notice to Bidders; Qualification Statement of Bidders; Qualification Statement of Bidder's Surety; Prevailing Wage Rates for Municipal Construction in Anna, Texas; Vendors Compliance to State Law; Conflicts of Interest Questionnaire; Affidavit Against Prohibited Acts; Proposal and Bid Form; Request for Certificate of Exemption from Texas Limited Sales, Excise and Use Tax; Contract Agreement; Bidders Bond; Performance Bond; Payment Bond; Maintenance Bond; Certificate of Insurance; Notice to Proceed; Any executed Change Orders; Supplementary General Provisions and Technical Specifications; and, Plans, Specifications and Drawings and all other documents made available to bidder for his inspection in accordance with Invitation to Bid,2 2 If plans, specifications or drawings are too bulky or cumbersome to be physically bound, they are to be considered incorporated by reference into the aforementioned contract documents. 27 all of which are hereby incorporated herein by reference, whether or not attached hereto, and made a part hereof (hereinafter along with this Contract Agreement and referenced collectively as the 'Contract" or "Contract Documents"). Change Orders issued hereafter, Construction Change Directives, a Direction for a Minor Modification in the Work issued by the City, and any other amendments executed by the City and the Contractor, shall become and be a part of the Contract Documents. Documents not included or expressly contemplated in this Section 1 do not, and shall not, form any part of the Contract. The Contract Documents are intended to be complementary, and a requirement in one document shall be deemed to be required in all documents. However, in the event of any conflict between any of the above -listed documents and this Contract Agreement, this Contract Agreement shall control. Section 2. REPRESENTATIONS OF THE CONTRACTOR In order to induce the City to execute the Contract and recognizing that the City is relying thereon, the Contractor, by executing the Contract, makes the following express representations to the City: 2.01 The Contractor is fully qualified to act as the general contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the general contractor for, and to construct the Project; 2.02 The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated; 2.03 The Contractor has received, reviewed and examined all of the documents which make up the Contract, including, but not limited to all plans and specifications, and has found them to the best of its knowledge, to be complete, accurate, adequate, consistent, coordinated and sufficient for construction. Section 3. INTENT AND INTERPRETATION With respect to the intent and interpretation of the Contract, the City and the Contractor agree as follows: 3.01 This Contract Agreement (along with its exhibits and other documents expressly referenced in Section 1, above), together with the Contractor's and Surety's proposal bond, performance and payment bonds, and maintenance bonds for the Project constitute the entire and exclusive agreements between the parties with reference to the Project, and said Contract supersedes any and all prior discussions, communications, representations, understandings, negotiations, or agreements. 3.02 Anything that may be required, implied or reasonably inferred by the documents which make up the Contract, or any one or more of them, shall be provided by the Contractor with no increase to the Contract Price; 3.03 Nothing contained in the Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between the City and any person except the Contractor; 3.04 When a word, term, or phrase is used in the Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage; 3.05 Wherever the Contract calls for "strict" compliance or conformance with the Contract Documents as to matters —other than compliance with time limits, providing an updated schedule, and claim and change order procedures —the term shall mean within tolerances as described specifically m in the Contract Documents, or if not specifically described, within industry standards and tolerances for deviation for the specific item or procedure in question; 3.06 The words "include", "includes", or "including as used in the Contract, shall be deemed to be followed by the phrase, "without limitation'; 3.07 The listing herein of any items as constituting a material breach of the Contract shall not imply that any other, non listed item will not constitute a material breach of the Contract; 3.08 The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up the Contract, shop drawings, and other submittals and shall give written notice to the City of any conflict, ambiguity, error or omission which the Contractor may find with respect to these documents, before proceeding with the associated part of the Work. The express or implied approval by the City or its designee of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with the Contract. If the Contractor performs any activity knowing it involves an error, inconsistency or omission which was recognized, obvious, or reasonably should have been recognized, without such notice to the City, the Contractor shall assume responsibility for such performance and shall bear the costs for correction; 3.09 In the event of any conflict, discrepancy, or inconsistency among any of the documents which make up the Contract, the following shall control: (1) as between this Contract Agreement and any other document, this document shall govern; or, (2) in the case of any conflict, discrepancy or inconsistency among any of the other Contract Documents, and such conflict is not resolved by reference to the Supplementary General Provisions and Technical Specifications, then the Contractor shall notify the City immediately upon discovery of same for resolution. Section 4. CONTRACTOR'S PERFORMANCE The Contractor shall perform all of the Work required, implied or reasonably inferable from the Contract including, but not limited to, the following: 4.01 The Contractor will complete the entire Work described in the Contract Documents, except as specifically identified therein as the work of other parties or expressly excluded by specific reference, in accordance with the terms herein. 4.02 The furnishing of any and all required surety bonds and insurance certificate(s) and endorsement(s); 4.03 The provision or furnishing, and prompt payment therefor, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, disposal, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits or licenses required for the construction of the Project; 4.04 The creation and maintenance of a detailed and comprehensive copy of the drawings, specifications, addenda, change orders and other modifications depicting all as -built construction. Said items shall be submitted to the City, along with other required submittals upon Completion of the Project, and receipt of same by the City shall be a condition precedent to final payment to the Contractor. The Contractor shall prepare and submit final as -built drawings to the City. Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS 5.01 The Contractor shall commence the performance of the Contract on the date set forth in the Notice to Proceed issued by the City Manager or the City Manager's designee and shall diligently continue its performance to and until Completion of the Project. The Contractor shall accomplish Substantial Completion (as defined herein below) of the Project not more than ninety (90) calendar days following the issuance of the Notice to Proceed, (sometimes hereinafter referred to as the "Contract Time"). This Contract Time includes five (5) inclement weather days. By signing the Contract, the Contractor agrees that the Contract Time is a reasonable time for accomplishing Completion of the Project and completion of the Project within the Contract Time is of the essence. 5.02 For each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion, the Contractor shall pay the City the sum per day (or said per -day sum shall be deducted from the monies due the Contractor) as set forth in the following schedule: AMOUNT OF CONTRACT AMOUNT OF LIQUIDATED DAMAGES Less than $25,000.00 $100.00 Per Day $25,000.00 to $99,999.99 $160.00 Per Day $100,000.00 to $999,999.99 $240.00 Per Day More than $1,000,000.00 $500.00 Per Day Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the City, estimated at the time of executing the Contract. When the City reasonably believes that Substantial Completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the City to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the City has withheld payment, the City shall promptly release to the Contractor those funds withheld over and above what ultimately came due as liquidated damages; 5.03 The term "Substantial Completion", as used herein, shall mean the point at which, as certified in writing by the City's consulting architect/engineer or other appropriate independent contractor or representative and approved by the City, the Project is at a level of completion in strict compliance with the Contract such that the City or its designee can enjoy beneficial use or occupancy and can legally occupy, use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion. 5.04 All limitations of time set forth herein are material and are of the essence of the Contract. 5.05 Contractor agrees to punctually and diligently perform all parts of the Work at the time scheduled in this Contract Agreement. In this connection, Contractor agrees that it will keep itself continually informed of the progress of the job and will, upon its own initiative, confer with the City so as to plan its Work in coordinated sequence with the work of the City, if any, and of others and so as to be able to expeditiously undertake and perform its work at the time most beneficial to the entire Project. The Contractor will be liable for any loss, costs, or damages sustained by the City for delays in performing the Work hereunder, other than for excusable delays, as set forth in 5.06 below, for which Contractor may be granted a reasonable extension of time. 30 5.06 If the Contractor is delayed at any time in the progress of the Work by any separate contractor employed by the City, or by changes in the Work, or by labor disputes, fire, unusual delay in transportation, unusually severe weather conditions, unavoidable casualties, delays specifically authorized by the City, or by causes beyond the Contractor's control, avoidance, or mitigation, and without the fault or negligence of the Contractor and/or subcontractor or supplier at any tier, then the contract time shall be extended by Change Order for such reasonable time, if any, as the City may determine that such event has delayed the progress of the Work, or overall completion of the Work if the Contractor complies with the notice and documentation requirements set forth below. (1) If the Contractor is delayed, obstructed, hindered or interrupted for a period of time exceeding seven calendar days by any act or neglect of the City, an adjustment shall be made for any increase in the direct cost of performance of this contract (excluding profit, extended home office overhead, incidental or consequential damages or disruption damages) and the Contract modified in writing accordingly. The Contractor must assert its right under this section by giving written notice to the City Manager within 10 calendar days of the beginning of a delay, obstruction, hindrance or interruption by the City. No adjustment shall be made for any delay, obstruction, hindrance or interruption after final payment under this contract or to the extent that performance would have been so delayed, obstructed, hindered or interrupted by any other cause, including, but not limited to concurrent cause or fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract. The direct costs described above shall be limited to those direct costs attributable solely to this project, and shall be subject to documentation and verification of costs as required by the City. If unit prices are established in the Contract Documents or subsequently agreed upon, they shall form the basis for cost calculations under any claims for delay. (2) Any claim for extension of time shall be made in writing to the City, not more than 10 calendar days from the beginning of the delay. The notice shall indicate the cause of delay upon the progress of Work. If the cause of the delay is continuing, the Contractor must give such written notice every 10 calendar days. Within 10 calendar days after the elimination of any such delay, the Contractor shall submit further documentation of the delay and a formal Change Order request for an extension of time for such delay. (3) The written request for a time extension shall state the cause of the delay, the number of calendar days extension requested, and such analysis and other documentation as is reasonably requested by the City to demonstrate a delay in the progress of the Work or the overall project completion. If the Contractor does not comply with the above notice and documentation requirements, the claim for the delay shall be waived by the Contractor. The above notice and documentation requirements shall also be a condition precedent to the Contractor's entitlement to any extension of time. (4) Extensions of time will be the contractor's primary remedy for any and all delays, obstructions, hindrances, or interference. Payment or compensation, for direct costs only (as set forth above), may be made to the Contractor for hindrances or delays solely caused by the City if such delays or hindrances are within the City's ability to control and are not partially caused by the Contractor or any of its agents, subcontractors or others for whom it is responsible. No payment or compensation will be made for interference, obstructions, hindrances or delays which are not solely caused by the City and which the City fails to cure after a reasonable period after written notice. (5) Without limitation, the City's exercise of its rights under provisions related to changes to the Work, regardless of the extent or number of such changes, or the City's exercise of any of its remedies or any requirement to correct or re -execute defective Work, shall not 31 under any circumstances be construed as delays, hindrances or interference compensable further than as described herein. Section 6. FIXED PRICE AND CONTRACT PAYMENTS 6.01 The City shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder the fixed price of The price set forth in this Section 6.01 shall constitute the Contract Price, which shall not be modified except by Change Order or adjustment pursuant to approved unit prices, if any, as provided in the Contract. 6.02 The City shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this Section 6 and as set forth here: (1) On or before the 10`" calendar day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a payment request for the period ending the last calendar day of the previous month (the "Payment Request"). Said Payment Request shall be in such format and include whatever supporting information as may be required by the City. Therein, the Contractor may request payment for 90% of that part of the Contract Price allocable to Contract requirements properly provided, labor, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if offsite storage is approved in writing by the City), less the total amount of previous payments received from the City. Payment for materials stored offsite shall be at the discretion of the City and if approved, the Contractor shall provide appropriate documentation to substantiate materials are stored in a bonded warehouse or facility, title or other proof of ownership has been transferred to the City, and that materials have been purchased and paid for by the Contractor (copies of paid invoices must be submitted to the City with payment request). Risk of loss shall be borne by, and insurance must be provided by the Contractor while in storage, transit and use during construction. At 75% completion of the Contract, by dollar value, and at the option of the City, retainage may be reduced to 5% plus an additional amount as detailed in Section 6.06 below for any part of the Work that is defective or non -conforming and in Section 6.02 above for anticipated liquidated damages. (2) Amounts reflected in Change Orders may be included in Payment Requests to the extent they are not in dispute and subject to final approval of cost to the City for such changes in the work. (3) Each Payment Request shall be signed by the Contractor and shall constitute the Contractor's representation that the quantity of Work has reached the level for which payment is requested, that the Work has been properly installed or performed in strict compliance with the Contract, and that the Contractor knows of no reason why payment should not be made as requested. (4) Thereafter, the City shall review the Payment Request and may also review the Work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract. The amount of each such payment shall be the amount approved for payment by the City less such amounts, if any, otherwise owing by the Contractor to the City or which the City shall have the right to withhold as authorized by the Contract, subject to approval by the City. Approval of the Contractor's Payment Requests shall not preclude the City from the exercise of any of its rights as set forth in 6.06 herein below. (5) The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the City has previously paid is free 32 and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the City, also furnish to the City properly executed waivers of lien or claim, in a form acceptable to the City, from all subcontractors, materialmen, suppliers or others having lien or claim rights, wherein said subcontractors, materialmen, suppliers or others having lien or claim rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights or other claims relating to the Project site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the City. 6.03 When payment is received from the City, the Contractor shall within seven calendar days pay all subcontractors, material men, laborers and suppliers the amounts they are due for the work covered by such payment. In the event the City becomes informed that the Contractor has not paid a subcontractor, material man, laborer, or supplier as provided herein, the City shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, material man, laborer, or supplier as joint payees. The City shall notify the Contractor of its intent to implement such a procedure, and will give the Contractor a reasonable period to cure any such failure prior to implementing the procedure. Such joint -check procedure, if employed by the City, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check as a co -payee and shall not be deemed to commit the City to repeat the procedure in the future. 6.04 Neither payment to the Contractor, full or partial utilization of the Project for any purpose by the City, nor any other act or omission by the City shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract; 6.05 After written notice to the Contractor and a reasonable opportunity to cure, the City shall have the right to refuse to make payment, in whole or in part, and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to: (1) The quality of a portion, or all, of the (`ontractor's work not being in accordance with the requirements of the Contract; (2) The quantity of the Contractor's work not being as represented in the Contractor's Payment Request, or otherwise; (3) The Contractor's rate of progress being such that, in the opinion of the City, Substantial Completion may be inexcusably delayed; (4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City, to pay Contractor's Project -related obligations including, but not limited to, subcontractors, laborers and material and equipment suppliers; (5) Claims made, or likely to be made, against the City or its property for which the Contractor or its agents or subcontractors or others for whom it is responsible are, or reasonably appear to be at fault; (6) Loss caused by the Contractor; 33 (7) The Contractor's failure or refusal to perform any of its obligations to the City, after written notice and a reasonable opportunity to cure as set forth above. In the event that the City makes written demand upon the Contractor for amounts previously paid by the City as contemplated in this Section 6.05, the Contractor shall promptly comply with such demand. The City's rights hereunder survive the term of this Contract Agreement, are not waived by final payment and/or acceptance, and are in addition to Contractor's obligations elsewhere herein. 6.06 When the Contractor believes that Substantial Completion has been achieved, the Contractor shall notify the City in writing and shall furnish a listing of those matters, if any, yet to be finished. The City will thereupon conduct a site review to confirm that the Project is in fact substantially complete. If the City, through its review, finds that the Contractor's work is not substantially complete, and is required to repeat all, or any portion, of such review, the Contractor shall bear the cost of such repeat site review(s), which cost may be deducted by the City from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by the Contract shall commence on the date of Substantial Completion. Upon Substantial Completion, the City shall pay the Contractor an amount sufficient to increase total payments to the Contractor to 100% of the Contract Price less any amounts attributable to damages, and less 150% of the costs, as reasonably determined by the City, incurred for the City to complete any incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims. Such a calculation by the City of costs for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims shall not bar the City from exercising its stated rights elsewhere in the Contract, or otherwise as provided by law for any incomplete, defective or nonconforming work or claims that are discovered by the City after the date of making such calculation or after the date of any partial or final payment, whether or not such incomplete, defective or nonconforming work or claims were obvious or should have been discovered earlier. 6.07 When the Project is finally complete and the Contractor is ready for a final review, it shall notify the City thereof in writing. Thereupon, the City will perform a final site review of the Project. If the City concurs that the Project is complete in full accordance with the Contract and that the Contractor has performed all of its obligations to the City hereunder, the Contractor will furnish a final Approval for Payment to the City certifying to the City that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to the Contract. If the City is unable to issue its final Approval for Payment and is required to repeat its final review of the Project, the Contractor shall bear the cost of such repeat review(s), which costs may be deducted by the City from the Contractor's final payment; 6.08 The City shall, subject to its rights set forth in Section 6.06 above and elsewhere in the Contract, endeavor to make final payment of all sums due the Contractor within 30 calendar days of the final Approval for Payment, with the exception of items in dispute or concerning which the City has exercised any of its rights to investigate or remove. Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY 7.01 The City has furnished to the Contractor, prior to the execution of this Contract Agreement, all written and tangible material in its possession relevant to the conditions at the site of the Project. Such written and tangible material has been furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the City and for no R109 other purpose. By furnishing such material, the City does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all. 7.02 Differing site conditions. The Contractor shall promptly, and before such conditions are disturbed, notify the City in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in the contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The City shall investigate the conditions, and if it finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the Work under the Contract, whether or not changed as a result of such conditions, an adjustment shall be made, through negotiation and mutual agreement, and the contract modified in writing accordingly. Section 8. CEASE AND DESIST ORDER/OWNER'S RIGHT TO PERFORM WORK 8.01 In the event the Contractor fails or refuses to perform the Work, or any separable part thereof, as required herein, or with the diligence that will ensure its proper, timely completion in accordance with the contract documents, the City may instruct the Contractor, by written notice, to cease and desist further Work, in whole or in part, or to correct deficient Work. Upon receipt of such instruction, the Contractor shall immediately cease and desist, or proceed, as instructed by the City. In the event the City issues such instructions to cease and desist, the Contractor must, within seven calendar days of receipt of the City's instructions, provide a written, verified plan to eliminate or correct the cause of the City's order, which plan appears to the City to be reasonable, actually attainable and in good faith. In the event that the Contractor fails and/or refuses to provide such a plan or diligently execute an approved plan, then the City shall have the right, but not the obligation, to carry out the Work, or any portion thereof, with its own forces, or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of the City performing such work, which costs may be withheld from amounts due to the Contractor from the City. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the City may have against the Contractor. If Work completed by the City or other contractor affects, relates to, is to be attached onto or extended by later Work of the Contractor, the Contractor shall, prior to proceeding with the later Work, and to the extent visible, report any apparent defects or variance from the Contract requirements which would render the Contractor's later Work not in compliance with the Contract requirements or defective or not in compliance with warranties or other obligations of the Contractor hereunder. 8.02 The provisions of this section shall be in addition to the City's ability to remove portions of the Work from the Contract and complete it separately. Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in the Contract Documents, the Contractor shall have and perform the following duties, obligations and responsibilities to the City: 9.01 Reference is hereby made to the continuing duties set forth in Section 3.08 above, which are by reference hereby incorporated in this Section 9.01. The Contractor shall not perform work without adequate plans and specifications, or without, as appropriate, approved shop drawings, or other submittals. If the Contractor performs work knowing or believing, or if through exercise 35 of reasonable diligence it should have known that such work involves an error, inconsistency or omission in the Contract without first providing written notice to the City, the Contractor shall be responsible for such work and shall correct same bearing the costs set forth in Section 3.08 above. 9.02 All work shall strictly conform to the requirements of the Contract. To that end, the Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work, unless otherwise specified in the Contract Documents; 9.03 The work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts, errors or omissions of those engaged in the work on behalf of the Contractor, including, but not limited to, all subcontractors and their employees. The Contractor shall maintain an on - site superintendent while any portion of the Work is being performed. The Contractor shall operate exclusively in the capacity of the City's independent contractor as to all work it performs under the Contract, and not as an agent, employee, or representative of the City; 9.04 The Contractor hereby warrants that all laborers furnished under the Contract shall be qualified and competent to perform the tasks undertaken, that the product of such labor shall yield only first-class results, that all materials and equipment provided shall be new (unless otherwise specified) and of high quality, that the completed work will be complete, of high quality, without defects, and that all work strictly complies with the requirements of the Contract. Any work not strictly complying with the requirements of this the Contract shall constitute a breach of the Contractor's warranty. 9.05 The Contractor will be responsible for acquiring all required permit(s)—except as specifically stated in Section 22.01 below —and calling for all required or routine inspections. The Contractor will cooperate with and abide by the decision of inspectors having jurisdiction. Should the Contractor have a dispute with any inspector or entity having jurisdiction, the Contractor shall promptly notify the City Manager or the City Manager's designee. The Contractor shall comply with all legal requirements applicable to the work 9.06 The Contractor shall employ and maintain at the Project site only competent, qualified full time supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are as follows: NAME FUNCTION If at any time the City reasonably determines that any employee of the Contractor is not properly performing the Work in the best interest of the City or the Project, or is hindering the progress of the Work, or is otherwise objectionable, the City shall so notify the Contractor, which shall replace the employee as soon as possible, at no increased cost to the City. 36 9.07 The Contractor must submit to the City the Contractor's schedule for completing the work prior to submittal of the first application for payment. The City will not review any payment request until such schedule has been submitted and approved. Such schedule shall be in a form as specified in the Contract or which shall have been approved by the City Manager or the City Manager's designee, and which shall provide for expeditious and practicable construction of the Project. The Contractor's schedule shall be updated no less frequently than monthly (unless the parties otherwise agree in writing) and shall be updated to reflect conditions encountered from time to time and shall apply to the total project. Each such revision shall be furnished to the City. Strict compliance with the requirements of this Section 9.07 shall be a condition precedent to payment to the Contractor, and failure by the Contractor to strictly comply with said requirements shall constitute a material breach of the Contract. 9.08 The Contractor shall keep an updated copy of the Contract Documents at the site. Additionally, the Contractor shall keep a copy of approved shop drawings and other submittals. All of these items shall be available to the City during all regular business hours. 9.09 Shop drawings and other such submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any work requiring shop drawings or other submittals unless such shall have been approved in writing by the City or as required by the Contract Documents. All work requiring approved shop drawings or other submittals shall be done in strict compliance with such approved documents or Contract requirements. However, approval by the City shall not be evidence that work installed pursuant thereto conforms with the requirements of the Contract, and shall not relieve the Contractor of responsibility for deviations from the Contract unless the City has been specifically informed of the deviation by a writing incorporated in the submittals and has approved the deviation in writing. The delivery of submittals shall constitute a representation by the Contractor that it has verified that the submittals meets the requirements of the Contract, or will do so, including field measurements, materials and field construction criteria related thereto. The City shall have no duty to review partial submittals or incomplete submittals. The Contractor shall have the duty to carefully review, inspect, examine and physically stamp and sign any and all submittals before submission of same to the City. 9.10 The Contractor shall maintain the Project site and adjacent areas affected by its work and/or the acts of its employees, materialmen and subcontractors in a reasonably clean condition during performance of the work. Upon substantial completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or equipment. If the Contractor fails to do so, the City may complete the cleanup, by its own forces or by separate contract, and shall be entitled to charge the Contractor for same through the collection or withholding of funds through the mechanisms provided elsewhere in this Contract Agreement; 9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to enter upon the Project site and any offsite lay down areas, safety permitting, and to review or inspect the work and any materials on any such site, without formality or other procedure. 9.12 The Contractor recognizes that the City may enter into other contracts to perform work relating to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its forces reasonably accommodate the forces of the City and other contractors hired by the City. The Contractor shall coordinate its schedule with the work of other contractors. If the Contractor 31 claims that delay or damage results from these actions of the City, it shall promptly submit a claim as provided herein. 9.13 Protection of persons and property. (1) It shall be the responsibility of the Contractor to initiate, continue and supervise all safety programs and precautions in the performance of the terms of the Contract. The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to its employees, subcontractors' employees, employees of the City and members of the public, the Work itself and unassembled components thereof, and other property at the site or adjacent thereto. As part of the Contractor's obligations hereunder, the Contractor shall erect and maintain all necessary and prudent safeguards, barriers, signs, warnings, etc. (2) With notice to the City, the Contractor shall promptly remedy loss or damage to the Work or any person or property described herein caused in whole or in part by the acts of the Contractor or any subcontractor, sub -subcontractor or materialman. This obligation shall be in addition to the requirements of Section 10 herein. The City may direct the Contractor to remedy known violations of applicable laws, rules, regulations, and interpretations related to safety when and if observed on the site. However, through exercising this authority the City shall not incur any obligations to monitor, initiate, continue, or supervise safety programs and precautions such to diminish the Contractor's primary role in same. The City shall have the right to report suspected safety violations to the Occupational Safety and Health Administration (OSHA) or other appropriate authorities. (3) The Contractor shall promptly notify the City upon discovery of any unidentified material which Contractor reasonably believes to be asbestos, lead, PCB, or other hazardous material, and shall immediately stop work in the affected area of the Project. The Contractor shall not be responsible for removal or other work with regard to such hazardous material unless otherwise agreed between the City and the Contractor. In the case of work stopped due to the discovery of hazardous materials, Section 6 shall apply to claims for delay, hindrance or interference. Work will resume in the affected area of the Project immediately after such time as the hazardous material has been removed or rendered harmless, as certified by an industrial hygienist to be engaged by the City. 9.14 The Contractor warrants to the Owner that materials and equipment furnished under the Contract are of good quality and new unless otherwise required or permitted under the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. �Z3 WYA [1�1►11�ri I1l>t 1 Except for expenses or liabilities arising from the negligence of the City, the Contractor hereby expressly agrees to indemnify and hold the City harmless against any and all expenses and Liabilities arising out of the performance or default of the Contract as follows. 10.01 Contractor shall indemnify. and hold harmless. to the maximum extent permitted by law City and its officers, agents, employees, and consultants from and against any and all liability, damages, losses, (whether in contract or in tort, including personal injury, accidental death or property damage, and regardless, of whether the allegations are false, fraudulent or groundless), and costs (including reasonable attorney's fees, litigation, arbitration, mediation, appeal expenses incurred in any matter, including a proceeding to enforce this Section 10) which in whole or in part are caused by the negligence, recklessness or intentional wrongful misconduct of the Contractor and Persons employed by or utilized by the Contractor in Contractor's performance of this Contract Agreement. 10.02 Contractor's obligation to indemnify, defend and hold harmless shall remain in effect and shall be binding upon Contractor whether such injury or damage shall accrue, or may be discovered, before or after termination of the Contract. 10.03 Contractor's failure to comply with this section's provisions shall constitute a material breach upon which City may immediately terminate or suspend this Contract Agreement. [+,M!V.%n1L:7iTfiRaR_I1►VI+�3'iIda�a7A W-d7_VAN%]7 Claims by the Contractor against the City, other than for time extensions covered by Section 6 hereof, are subject to the following terms and conditions: 11.01 All Contractor claims against the City shall be initiated by a written claim submitted to the City. Notice of such claim shall be received by the City no later than either 10 calendar days after the event, or 10 calendar days after the first appearance of the circumstances causing the claim, whichever is sooner, and same shall set forth in detail all known facts and circumstances supporting the claim. Final costs associated with any claim upon which notice has been filed must be submitted in writing to the City within 30 calendar days after notice has been received; 11.02 The Contractor and the City shall continue their performance hereunder regardless of the existence of any claims submitted by the Contractor including claims set forth in Section 6 hereof; 11.03 In the event the Contractor discovers previously concealed and unknown site conditions which are materially at variance from those typically and ordinarily encountered in the general geographical location of the Project, the Contract Price may, with the approval of the City, be modified, either upward or downward, upon the written notice of claim made by either party within 10 calendar days after the first appearance to such party of the circumstances. Final costs must be submitted within 30 calendar days after such notice is received by the City, unless extended by written agreement of the parties. As a condition precedent to the City having any liability to the Contractor due to concealed and unknown conditions, the Contractor must give the City written notice of, and an opportunity to observe, such condition prior to disturbing it. The failure by the Contractor to give the written notice and make the claim as provided by this Section 11.03 and as required elsewhere under the Contract shall constitute a waiver by the Contractor of any rights arising out of or relating to such concealed and unknown condition; 39 11.04 In the event the Contractor seeks to make a claim for an increase in the Contract Price, as a condition precedent to any liability of the City therefor, unless emergency conditions exist, the Contractor shall strictly comply with the requirements of Section 11.01 above and such claim shall be made by the Contractor before proceeding to execute any work for which a claim is made. Failure to comply with this condition precedent shall constitute a waiver by the Contractor of any claim for additional compensation; 11.05 In connection with any claim by the Contractor against the City that would result in compensation in excess of the Contract Price, any liability of the City for the Contractor's cost in this regard shall be limited to those cost categories set forth in Section 13.07 below. Section 12. SUBCONTRACTORS 12.01 Prior to execution of the Contract, the Contractor shall have identified to the City in writing, those parties required to be listed on the proposal form as subcontractors on the Project. Any changes to this list at any time shall be subject to the prior approval of the City. The City shall, in writing, state any objections the City may have to one or more of such subcontractors. The Contractor shall not enter into a subcontract with an intended subcontractor to whom the City objects. If at any time the City objects to a subcontractor, the Contractor shall solicit proposals from potential replacements and shall submit the three lowest proposals to the City, along with the Contractor's proposed choice as replacement. If the approved replacement subcontractor's cost is verified to be higher than the removed subcontractor, the excess shall be added to the Contract Price, unless the subcontractor in question has to be removed due to a default, or deficient performance. If the approved replacement subcontractor's cost is lower than the removed subcontractor, the difference shall be deducted from the Contract Price. Subcontractor markups shall be limited to those listed in Section 13.07 below. All subcontracts shall afford the Contractor rights against the subcontractor which correspond to those rights afforded to the City against the Contractor herein, including those rights of Contract termination as set forth herein below. 12.02 Each and every subcontract related to the Project is hereby assigned by the Contractor to the City, contingent upon the termination of the Contract for default or convenience as provided herein, and only as to those subcontracts which the City accepts in writing directed to the Contractor. This contingent assignment is subject to the prior rights of any surety obligated under a bond related to the Contract. This contingent assignment will operate prospectively from the effective date of assignment, and will not obligate the City to any liabilities existing on the effective date of the assignment, or arising from events, acts, failures to act, facts or circumstances existing prior to the effective date of the assignment. The contracts subject to this contingent assignment shall also be further assignable by the City, at the City's sole option. The Contractor shall bear the responsibility of notifying subcontractors of this contingent assignment and including it in all subcontracts in connection with the Project. Section 13. CHANGE ORDERS 13.01 The City Manager or the City Manager's express designee shall be the sole authorized representative of the City. Other than in matters of public safety or in time of emergency management, the Contractor shall not take direction or act upon information from any City personnel other than the City Manager's expressly authorized designee(s). 13.02 One or more changes to the work within the general scope of the Contract, may be ordered by Change Order. The City may also issue written directions for minor changes in the Work and may issue Construction Change Directives, as set forth below. The Contractor shall proceed with any such changes or Construction Change Directives without delay and in a diligent manner, and same shall be accomplished in strict accordance with the following terms and conditions: 13.03 Change Order shall mean a written order directed to the Contractor executed by the City after execution of the Contract, directing a change in the work. A Change Order may include a change in the Contract Price, (other than a change attributable to damages for delay as provided in Section 6 hereof), or the time for the Contractor's performance, or any combination thereof. Where there is a lack of total agreement on the terms of a Change Order or insufficient time to execute a bilateral change, the City may also direct a change in the Work in the form of a Construction Change Directive, which will set forth the change in the Work and the change, if any, in the Contract Price or time for performance, for subsequent inclusion in a Change Order; Construction Change Directives shall include a notAo-exceed preliminary price, against which the Contractor may begin billing (subject to the requirements for pay applications elsewhere herein) as the work is performed. (1) The Contractor shall furnish a price breakdown, itemized as required and within the time specified by the City, with any proposal for a contract modification. (2) The price breakdown (a) must include sufficient detail to permit an analysis of all costs for material, labor, equipment and subcontracts, and (b) must cover all work involved in the modification, whether the work was deleted, added or changed. (3) The Contractor shall provide similar price breakdowns to support any amounts claimed foI subcontracts. (4) The Contractor's proposal shall include a complete justification for any time extension proposed. 13.04 Any change in the Contract Price resulting from a Change Order shall be determined as follows: (1) By mutual agreement between the City and the Contractor as evidenced by (a) the change in the Contract Price being set forth in the Change Order, (b) such change in the Contract Price, together with any conditions or requirements relating thereto, being initialed by both parties and (c) the Contractor's execution of the Change Order; or, (2) If no mutual agreement occurs between the City and the Contractor, the change in the Contract Price, if any, shall be derived by determining the reasonable actual costs incurred or savings achieved, resulting from revisions in the work. Such reasonable actual costs or savings shall include a component for direct job site overhead and profit but shall not include home -office overhead or other indirect costs or components. The calculation of actual costs shall conform to the markup schedule in Section 13.07 below. Any such costs or savings shall be documented in the format, and with such content and detail as the City requires. The Contractor shall promptly submit such documentation and other supporting materials as the City may require in evaluating the actual costs incurred or to be incurred. Cil 13.05 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the work, the Contract as thus amended, the Contract Price and the time for performance by the Contractor, regardless of the nature, amount or extent of the changes. The Contractor, by executing the Change Order, waives and forever releases any claim against the City for additional time or compensation for matters relating to, arising out of or resulting from the work included within or affected by the executed Change Order of which the Contractor knew or should have known. 13.06 The Contractor shall notify and obtain the consent and approval of the Contractor's surety with reference to all Change Orders if such notice, consent or approval are required by the City, the Contractor's surety or by law. The Contractor's execution of the Change order shall constitute the Contractor's warranty to the City that the surety has been notified of, and consents to, such Change Order and the surety shall be conclusively deemed to have been notified of such Change Order and to have expressly consented thereto. 13.07 For the purpose of Change Orders, the following definitions of terms and other restrictions apply: Contractor's or Subcontractor's Materials shall include the cost of materials, sales tax, and the cost of all transport. The cost of items listed shall be directly related to the Change Order. Indirect costs not specifically related to the Change Order shall not be considered. Contractor's or Subcontractor's Direct Labor Cost shall be limited to the hourly rate of directly involved workmen, employer contributions towards company standard benefits, pensions, unemployment or social security (if any), and employer costs for paid sick and annual leave. Contractor's or Subcontractor's Overhead shall include license fees, bond premiums, supervision, wages of timekeepers and clerks, incidentals, home and field office expense, and vehicle expense directly related to the Project, and all other direct Project expenses not included in the Contractor's materials, direct labor, and equipment costs. The allowance for Overhead and Profit shall be limited to the following schedule: 1. For the Contractor, for any work performed by the Contractor's own forces, 10% of the Subtotal of Costs to the Contractor. 2. For the Contractor, for any work performed by his Subcontractor, 5% of the amount due the Subcontractor. 3. For each Subcontractor or Sub -subcontractor involved, for any work performed by their own forces, 10% of their materials and direct labor costs. 4. For each Subcontractor, for work performed by his Sub-subcontractor(s), 5% of the amount due the Sub -subcontractor. C� For Change Orders, the total cost or credit to the Owner shall be based on the following schedule: Contractor's Materials Cost + Contractor's Direct Labor Costs + Contractor's Equipment Costs (includes owned/rental equipment)3 + Applicable Subcontractor Costs =Subtotal of Costs to the Contractor + Contractor's Overhead and Profit =Total Cost or Credit to the Owner 13.08 Nothing Contained in this section shall be deemed to contradict or limit the terms of Section 6.05 above. Section 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK 14.01 In the event that the Contractor covers, conceals or obscures its work in violation of the Contract or in violation of an instruction from the City, such work shall be uncovered and displayed for review by the City and/or its consultants upon request, and shall be reworked at no cost in time or money to the City. 14.02 If any of the work is covered, concealed or obscured in a manner not covered by Section 14.01 above, it shall, if directed by the City, be uncovered and displayed for the City and/or its consultants. If the uncovered work conforms strictly with the Contract, the costs incurred by the Contractor to uncover and subsequently, replace such work shall be borne by the City. Otherwise, such costs shall be borne by the Contractor. 14.03 The Contractor shall, at no cost in time or money to the City, correct work rejected by the City as defective or failing to conform to the Contract. Additionally, the Contractor shall reimburse the City for all testing, review, inspections and other expenses incurred as a result thereof. 14.05 In addition to its warranty obligations set forth elsewhere in this Contract Agreement and any manufacturer's warranties provided on the Project, and in addition to other remedies provided herein or by law to the City, the Contractor shall be specifically obligated to promptly correct any and all defective or nonconforming work, whether obvious or after -discovered, for a period of 12 months following Substantial Completion upon written direction from the City. 14.06 The City may, but shall in no event be required to, choose to accept defective or nonconforming work. In such event, the Contract Price shall be reduced by the greater of (1) the reasonable costs of removing and correcting the defective or nonconforming work, or (2) the difference between the fair market value of the Project as constructed and the fair market value of the Project had it not been constructed in such a manner as to include defective or nonconforming work. If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate the City for the acceptance of defective or nonconforming work, the Contractor shall, upon 1 Owned Equipment For equipment owned by the Contractor, actually used in Change Order work including sales tax, or any related business entity, regardless of whether Contractor leases such equipment from the related business entity, the cost shall be the lesser of (i) the Contractor's actual ownership cost, or (ii) 85% of the applicable ownership cost listed in the most recent edition of the Contractor's Equipment Cost Guide, published by Dataquest. Third Party Rental Equipment For equipment actually rented by the Contractor, actually used in Change Order work including sales tax, from an unrelated third party, the cost shall be the lesser of (i) the ContractoPs actual rental cost, or (ii) 85% of the applicable equipment rates based on the most recent edition of the Rental Rate Bluebook for Construction published by Dataquest. A reasonable rental cost shall be allowed as determined by the City Manager or the City Manager's designee when machinery and construction equipment not so listed is required. 43 written demand from the City, pay the City such remaining compensation for accepting defective or nonconforming work. The Contractor shall have an opportunity to correct any defect or non- conformance prior to the City taking the above actions. The contractor, upon written notice of any defect or non-conformance, shall have 10 calendar days to make corrections, unless the City agrees that the correction will require more than 10 calendar days to correct. F - • � �i�fF��t�3'.�i������T��TZ��7���7�[�3Z�7�F��� 7��]�ul_Ti•[ 15.01 In addition to the City's rights under Section 8 and elsewhere in this Contract Agreement, the City shall have the right at any time to direct the Contractor to suspend its performance, or any designated part thereof when in the interests of the City. If any such suspension is directed by the City, the Contractor shall immediately comply with same. 15.02 In the event the City directs a suspension of performance under this section, through no fault of the Contractor, if the suspension is lifted other than by Termination, the City shall pay the Contractor as full compensation for such suspension the Contractor's ordinary and reasonable costs, actually incurred and paid, of: (1) demobilization and remobilization, including such justifiable costs paid to subcontractors (cost categories and markups limited to those set forth in Section 13.07 above); (2) preserving and protecting work in place; (3) approved storage of materials or equipment purchased for the Project, including insurance thereon; and (4) substantiated extended field office overhead (but no home -office overhead). 15.03 The City may order suspension of the Work in whole or in part for such time as deemed necessary because of the failure of the Contractor to comply with any of the requirements of this Contract Agreement, and the Contract Agreement's completion date shall not be extended on account of any such suspension of Work. When the City orders any suspension of the Work under this Section 15.03, the Contractor shall not be entitled to any payment for Work which the Contractor performs after notice of suspension and/or during the suspension period and shall not be entitled to any costs or damages resulting from such suspension. 15.04 The City's rights under this section shall be in addition to those contained elsewhere in the Contract or provided by law. Section 16. TERMINATION BY THE CITY The City may terminate the Contract in accordance with the following terms and conditions: 16.01 Termination for Convenience. The City may, when in the interests of the City, terminate performance under the Contract by the Contractor, in whole or in part, for the convenience of the City. The City shall give written notice of such termination to the Contractor specifying when termination becomes effective. The Contractor shall incur no further obligations in connection with the work so terminated, other than warranties and guarantees for completed work and installed equipment, and the Contractor shall stop work when such termination becomes Mil effective. The Contractor shall also terminate outstanding orders and subcontracts for the affected work. The Contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders. The City may direct the Contractor to assign the Contractor's right, title and interest under termination orders or subcontracts to the City or its designee. The Contractor shall transfer title and deliver to the City such completed or partially completed work and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has in its possession or control. When terminated for convenience, the Contractor shall be compensated as follows: (1) The Contractor shall submit a termination claim to the City specifying the amounts due because of the termination for convenience together with costs, pricing or other data required by the City. If the Contractor fails to file a termination claim within six months from the effective date of termination, the City shall pay the Contractor, an amount derived in accordance with subsection (3) below. (2) The owner and the Contractor may agree to the compensation, if any, due to the Contractor hereunder. (3) Absent agreement to the amount due to the Contractor, the owner shall pay the Contractor the following amounts: (a) Contract costs for labor, materials, equipment and other services accepted under the Contract; (b) Reasonable costs incurred in preparing to perform and in performing the terminated portion of the work, and in terminating the Contractor's performance, plus a fair and reasonable allowance for direct job site overhead and earned profit thereon (such profit shall not include anticipated profit or consequential damages); provided however, that if it reasonably appears that the Contractor would have not profited or would have sustained a loss if the entire Contract would have been completed, no profit shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss, if any; (c) Reasonable costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to Subsection (3)(a) above —if contingent assignment of such contracts has not been elected as provided herein —shall not include amounts paid in accordance with other provisions of the Contractor. This clause is subject to and the Contractor shall be limited by the City's rights to direct the replacement of subcontractors under Section 12.01. The total sum to be paid the Contractor under this Subsection (3) shall not exceed the total Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall in no event include duplication of payment. 16.02 Termination for Cause. If the Contractor does not perform the work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to disobey applicable law, or otherwise commits a violation of a material provision of the Contract, then the City, in addition to any other rights it may have against the Contractor or others, may terminate the performance of the Contractor, in whole or in part at the City 's sole option, and 45 assume possession of the Project site and of all materials and equipment at the site and may complete the work. In such case, the Contractor shall not be paid further until the work is complete. After Completion has been achieved, if any portion of the Contract Price, as it may be modified hereunder, remains after the cost to the City of completing the work, including all costs and expenses of every nature incurred, has been deducted by the City, such remainder shall belong to the Contractor. Otherwise, the Contractor shall pay and make whole the City for such cost. This obligation for payment shall survive the termination of the Contract. In the event the employment of the Contractor is terminated by the City for cause pursuant to this Section 16.02 and it is subsequently determined by a Court of competent jurisdiction that such termination was without cause, such termination shall thereupon be deemed a Termination for Convenience under Section 16.01 and the provisions of Section 16.01 shall apply. 16.03 Termination for Non -Appropriation. The City may also terminate the Contract, in whole or in part, for non -appropriation of sufficient funds to complete or partially complete the Project, regardless of the source of such funds, and such termination shall be on the terms of Section 16.01. 16.04 The City's rights under this Section shall be in addition to those contained elsewhere herein or provided by law. Section 17. INSURANCE 17.01 Contractor shall be responsible for all damage to person and or property resulting from its negligent acts, reckless or intentional misconduct, errors or omissions or those of their subcontractors, agents or employees in connection with such services and shall be responsible for all parts of its work, both temporary and permanent. 17.02 Contractor shall, at its own expense, procure and maintain throughout the term of this Contract Agreement, with insurers acceptable to City, the types and amounts of insurance conforming to the minimum requirements set forth in this Contract Agreement. Contractor shall not commence work until the required insurance is in force and evidence of insurance acceptable to City has been provided to, and approved by, City. An appropriate Certificate of Insurance shall be satisfactory evidence of insurance. Until such insurance is no longer required by the Contract, Contractor shall provide City with renewal or replacement evidence of insurance at least 30 days prior to the expiration or termination of such insurance. 17.03 Workers' Compensation/Employer's Liability Insurance Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $1,000,000 for each accident. General Liability Insurance Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 mine aggregate. m Automobile Liability Insurance Automobile Liability Insurance with bodily injury limits of not less than $1,00,000 for each person and not less than $1,000,000 for each accident, and with property damage limits of not less than $1,000,000 for each accident. 17.04 Contractor shall furnish insurance certificates or insurance policies at the City's request to evidence such coverages. Except for workers compensation, the insurance policies shall name the City as an additional insured, and shall contain a provision that such insurance shall not be canceled or reduced with respect to by coverages or endorsements without 30 days' prior written notice to OWNER and CONSULTANT. In such event, CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. 17.05 Compliance with these insurance requirements shall not limit the liability of Contractor. Any remedy provided to the City by any insurance maintained by the Contractor shall be in addition to and not in lieu of any other remedy (including, but not limited to, as an indemnitee of Contractor) available to the City under the Contract or otherwise. 17.06 Neither approval nor failure to disapprove insurance furnished by Contractor shall relieve Contractor from responsibility to provide insurance as required by this Contract Agreement. 17.07 Contractor shall deliver to City the required certificates) of insurance and endorsements) before City signs this Contract Agreement. 17.08 Contractor's failure to obtain, pay for, or maintain any required insurance shall constitute a material breach upon which City may immediately terminate or suspend this Contract Agreement. In the event of any termination or suspension, City may use the services of another consultant or consultants, without City's incurring any liability to Contractor. 17.09 At its sole discretion, City may obtain or renew Contractor insurance, and City may pay all or part of the premiums. Upon demand, Contractor shall repay CITY all monies paid to obtain or renew the insurance. City may offset the cost of the premium against any monies due Contractor from City. 17.10 The Contractor shall furnish to the City Certificates of Insurance allowing thirty (30) days notice for any change, cancellation, or non -renewal. Such Certificates shall contain the following wording: "SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN." If the insurance policies expire during the terms of the Contract, a renewal certificate or binder shall be filed with the City at least 30 days prior to the renewal date. 17.11 In addition to the coverages required herein, the Contractor shall furnish and maintain all-risk builderIs risk property insurance, satisfactory to the City, upon the entire Work at the site to the full replacement cost of the completed project. This coverage shall name City as an additional insured, must include the interests of the Contractor, subcontractors and sub -subcontractors in the Work, and must be procured from an insurer licensed to do business in the State of Texas with a Best's rating of "A+, A, A-". The policy must insure against perils including, but not limited to, earthquake, fire, extended coverages, windstorm, lightning, flood, and physical loss or damage, including theft, vandalism and malicious mischief. 47 Section 18. PERFORMANCE AND PAYMENT BONDS; SURETY BONDS 18.01 Contractor shall provide City with a Performance Bond, a Payment Bond, and a Maintenance Bond meeting the standards specified in the Contract Documents, on the forms provided by the City, and attached hereto, with a Power of Attorney Affidavit, each in an amount not less than the Contract price. 18.02 Sureties' qualifications. All bonds, to the extent required under the Contract, including, but not by way of limitation, any Bid/Proposal Bond, Performance Bond, Payment bond, or Maintenance Bond shall be written through a reputable and responsible surety bond agency licensed to do business in the State of Texas and with a surety which holds a certificate of authority authorizing it to write surety bonds in Texas and maintains a current certificate of authority as an acceptable surety on Federal Bonds in accordance with U.S. Department of Treasury Circular 570. However, if the amount of the bond exceeds the underwriting limitations set forth in the Circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the Circular and the excess risk must be protected by co-insurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (3) CFR Section 223.10 - Section 223.111 and the surety company shall provide the City with evidence satisfactory to the City, that such excess risk has been protected in an acceptable manner. 18.03 Additional or replacement bond. It is further mutually agreed between the parties hereto that if, at any time, the City shall deem the surety or sureties upon any bond to be unsatisfactory, or if, for any reason, such bond (because of increases in the work or otherwise) ceases to be adequate, the Contractor shall, at its expense within five days after the receipt of notice from the City so to do, furnish an additional or replacement bond or bonds in such form, amount, and with such surety or sureties as shall be satisfactory to the City. In such event, no further payments to the Contractor shall be deemed to be due under the Contract until such new or additional security for the faithful performance of the work shall be furnished in manner and form satisfactory to the City. 18.04 As applicable to all bonds required under the Contract, the surety company shall have a Texas agent whose name shall be listed in the prescribed space on the forms provided by the City for all bonds required by the City, or otherwise listed therein if the form of the Bond is not prescribed by the City. Section 19. PROJECT RECORDS All documents relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Contractor, or any subcontractor of the Contractor, shall be made available to the City and/or its consultants for inspection and copying upon written request by the City. Furthermore, said documents shall be made available, upon request by the City, to any state, federal or other regulatory authority and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all drawings, plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Said records expressly include those documents reflecting the cost of construction to the Contractor. The Contractor shall maintain and protect these documents for not less than three years after completion of the Project, or for any longer period of time as may be required by law or good construction practice. The Contractor further agrees to include these provisions in any subcontracts issued by him in connection with this Contract Agreement. 3I3 Section 20. APPLICABLE LAW The laws of the State of Texas shall govern this Contract Agreement. In any litigation arising under this Contract Agreement, the parties agree to a waiver of the right to a trial before a jury, and all such litigation shall be litigated only in a non -jury hearing in Collin County, Texas. Section 21. SUCCESSORS AND ASSIGNS Each party binds itself, its successors, assigns, executors, administrators or other representatives to the other party hereto and to successors, assigns, executors, administrators or other representatives of such other party in connection with all terms and conditions of the Contract. The Contractor shall not assign the Contract without prior written consent of the City. Section 22. MISCELLANEOUS PROVISIONS 22.01 Construction Permits. The City hereby agrees to waive the charge for aCity-issued building permit for this Project. However, the Contractor is responsible for obtaining all permits or fees otherwise required of the Contractor by the Contract Documents, or permits and fees customarily the responsibility of the Contractor. 22.02 Compliance By Contractor: Nondiscrimination. Contractor shall comply with all Federal, State and local laws, ordinances, rules and regulations of any authorities throughout the duration of the Contract. The Contractor shall be responsible for compliance with any such law, ordinance, rule or regulation and shall hold City harmless and indemnify same in the event of non- compliance. Contractor further agrees to abide by the requirements under Federal Executive Order Number 11246, as amended, including specifically the provisions of the equal opportunity clause. 22.03 State and Local Taxes. Except as otherwise provided, contract prices shall include all applicable state and local taxes. Contractor shall indemnify and hold harmless the City for any loss, cost or expense incurred by, levied upon or billed to the City as a result of Contractor's failure to pay any tax of any type due in connection with this Contract Agreement. Contractor shall ensure that the above sections are included in all subcontracts and sub -subcontracts, and shall ensure withholding on out of state sub and sub -subcontractors to which withholding is applicable. 22.04 Any and all notices required to be sent under the Contract or otherwise shall be sent to the following: If to the City: City of Anna Attn: City Manager 111 North Powell Parkway P.O. Box 776 Anna, Texas 79406 If to the Contractor: Aside from duly authorized Change Orders, any modification to this Contract Agreement must be supported by an additional, articulated consideration, and must either be in writing, executed by the parties hereto, or, if made orally, should be confirmed in writing, which writing should state the consideration which supports the modification. Failure to confirm an oral modification in writing shall constitute a waiver of any claim for additional compensation with regard to the oral modification. Nothing in this Section shall be construed to limit the City's authority to issue changes set forth in Section 14 herein. Section 24. SEVERABILITY If any term or condition of the Contract or the application thereof to any persons) or circumstances is held invalid, this invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition, or application. To this end, the terms and conditions of the Contract are agreed to be severable. Section 25. WAIVER Waiver of any breach of any term or condition of this contract shall not be deemed a waiver of any prior or subsequent breach, and shall not entitle any party hereto to any subsequent waiver of any terms hereunder. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. IN WITNESS WHEREOF, the Parties have executed this Contract Agreement under their respective seals on the day and year first written above. CITY OF ANNA, TEXAS Philip Sanders, City Manager ATTEST: Natha Wilkison, City Secretary (SEAL) (Contractor) BY: (name and title of authorized representative) ATTEST: SECRETARY (SEAL) 50 NJ RVR• KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)), as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) (an amount equal to five percent of the Total Bid Price, including Cash Allowances and Alternate Bids, if any) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted on or about this day a proposal offering to perform the following project: Slayter Creek Trail, Phase II Pedestrian Trail &Bridge Construction Project NOW, THEREFORE, if the said Principal's bid as stated in its proposal is accepted by the City, and said Principal executes and returns to the City the number of original counterparts of the Contract Agreement required by the City, on the forms prepared by the City, for the work described herein and also executes and returns the same number of the Performance, Payment and Maintenance Bonds (such bonds to be executed by a Corporate Surety authorized by the State Board of Insurance to conduct insurance business in the State of Texas, and having an underwriting limitation in at least the amount of the bond) in connection with the work described herein, within the time specified, then this obligation shall become null and void; otherwise it is to remain in full force and effect. In the event that the Principal is unable to or fails to perform the obligations undertaken herein, the undersigned Principal and Surety shall be liable to the City for the full amount of this obligation which is hereby acknowledged as the amount of damages which will be suffered by the City on account of the failure of such Principal to perform such obligations, the actual amount of such damages being difficult to ascertain. Notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle, with proper postage affixed (certified mail, return receipt requested), addressed to the respective other party at the address prescribed in the Contract Documents, or at such other address as the receiving party may hereafter prescribe by written notice to the sending party. 51 IN WITNESS WHEREOF, the said Principals) and Surety(s) have signed and sealed this instrument this day of , 20 Surety *By: (Title) PRINT NAME: Principal By: (Title) By: ADDRESS: (Title) PHONE/FAX: By: (Title) The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety By: PRINT NAME: ADDRESS: PHONE/FAX: 52 • No � • KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)), as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written Contract Agreement with the Obligee, dated the day of for the following project: Slayter Creek Trail, Phase II Pedestrian Trail &Bridge Construction Project and said Principal under the law is required before Contract Agreement to execute a bond in the at Contract Agreement is hereby referred to and ma extent as if copied at length herein. commencing the work provided for in said count of said Contract Agreement, which le a part hereof as fully and to the same NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform the work in accordance with the plans, specifications and contract documents, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code (Article 5472d for Private Work)4 of the Revised Civil Statutes of Texas as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work to be performed thereunder. a Not applicable for federal work. See "The Miller Act," 40 U.S.C. S270. r.�3 IN WITNESS WHEREOF, the said Principals) and Surety(s) have signed and sealed this instrument this day of , 20 (Title) PRINT NAME: ADDRESS: PHONE/FAX: Principal By: (Title) By: (Title) By: (Title) The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety Bv: PRINT NAME: ADDRESS: PHONE/FAX: 54 KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s)) as Principal(s), and (hereinafter called the Surety(s)), as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee), in the amount of: Dollars ($ ) lawful money of the United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the the Obligee, dated the. Principal has entered into a certain written Contract Agreement day of , for the: Slavter Creek Trail, Phase 11 Pedestrian Trail & Bridae Construction Project and said Principal under the law is required before commencing work provided for i Contract Agreement to execute a bond in the amount of said Contract Agreement, Contract Agreement is hereby referred to and made a part hereof as fully and to the extent as if copied at length herein. with � said which same NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said Contract Agreement, then this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 %J the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Agreement, or to the work to be performed thereunder. 55 IN WITNESS WHEREOF, the this instrument this day of _ S u rety (Title) PRINT NAME: ADDRESS: PHONE/FAX: said Principals) and Surety(s) have signed and sealed Principal By: (Title) By: (Title) By: (Title) 20 . The undersigned surety company represents that it is duly qualified to do business in Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and hereby designates , an agent resident in County, Texas, to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Surety By: PRINT NAME: ADDRESS: PHONE/FAX: 56 MAINTENANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT as PRINCIPAL, and a CORPORATION organized under the laws of as SURETIES, do hereby expressly acknowledge themselves to be held and bound to pay unto the City of Anna, a municipal corporation at Anna, Collin County, Texas the sum of: Dollars ($ ) for the payment which sum well and truly to be made until said City of Anna and its successors, said PRINCIPAL AND SURETIES do hereby bind themselves, their assigns and successors jointly and severally. THIS obligation is conditioned, however, that whereas said , the Contractor, did on , 20 enter into a written Contract Agreement with the said City of Anna to build and construct: Sla_yter Creek Trail, Phase II Pedestrian Trail &Bridge Construction Project in the City of Anna, Texas which Contract Agreement and the Plans and Specifications therein mentioned adopted by the City of Anna, are hereby expressly made a part hereof as though the same were written and embodied herein. WHEREAS, under the Plans and Specifications, and Contract Agreement, it is provided that the CONTRACTOR will maintain and keep in good repair the work herein contracted to be done and performed for a period of two (2) years from the date of acceptance; it being understood that the purpose of this section is to cover all defective material, work or labor performed by said CONTRACTOR, its employees, sub -contractors, materialmen and assigns. NOW THEREFORE, if the said CONTRACTOR shall keep and perform its said agreement to maintain said work and keep the same in repair for the said maintenance period of two (2) years, as provided, then these presents shall be null and void, and have no further effect, but if default shall be made by the said CONTRACTOR in the performance of its Contract Agreement to so maintain and repair said work, then these presents shall have full force and effect, and said CITY OF ANNA shall have and recover from said SURETY, damages in the premises, as provided, and it is further agreed that this obligation shall be a continuing one against the SURETY, hereon, and that successive recoveries may be had thereon for successive breaches until the full amount shall have been exhausted; and it is further understood that the obligation herein to maintain said work shall continue throughout said maintenance period, and the same shall not be changed, diminished, or in any manner affected from any cause during said time. 57 IN WITNESS WHEREOF, the said , (Contractor) has caused these presents to be , (Surety Co.) executed by its ATTORNEY-IWFACT and the said ATTORNEYdWFACT has hereunto set his hand this the day of 120 SURETY: (Company) By: Print Name: Title: Address: Phone/Fax: PRINCIPAL: (Company) By: Print Name: Title: Address: Phone/Fax: m CERTIFICATE OF INSURANCE 59 TO: CITY OF ANNA ANNA,TEXAS THIS IS TO CERTIFY THAT CERTIFICATE OF INSURANCE DATE: PROJECT: (Name and Address of Insured) isI at the date of this certificate, insured operations hereinafter described, for the provisions of the standard policies used by Exceptions to standard policy noted hereon. TYPE OF INSURANCE by this Company with respect to the business types of insurance and in accordance with the this Company, and further hereinafter described. Policy No. Effective Expires Limits of Liability Per Person $ Workmen's Per Occur. $ Compensation Property Damage $ Per Person $ Per Occur. $ Public Li bility Property Damage $ Per Person $ Per Occur. $ Contingent Liability Property Damage $ Per Person $ Per Occur. $ Property Damage Property Damage $ Per Person $ Per Occur. $ Builder's Risk Property Damage $ Per Person $ Per Occur. $ Automobile Property Damage $ Per Person $ Per Occur. $ Other Property Damage $ The foregoing Policies (do) (do not) cover all sub -contractors. Locations Covered: Description of Operations Covered: Additional Insured: City of Anna, Texas The above policies, either in the body thereof or by appropriate endorsement, provide that they may not be changed or canceled by the insurer in less than the legal time required after the insured has received written notice of such change or cancellation, or in case there is no legal requirement, in less than sixty (60) days in advance of cancellation or change. FIVE COPIES OF THIS CERTIFICATE MUST BE SENT TO THE OWNER (Name of Insurer) By: Title: _ Address: Phone/Fax: 61 NOTICE TO PROCEED Project: Slayter Creek Trail, Phase 11—City of Anna, TX Issued To: Date Issued: You are hereby notified to commence work in accordance with the Agreement dated the day of 20 on or before the 20 thereafter. day of and complete all of the work within consecutive calendar days The date of completion for all work shall therefore be the . 20 . Issued by: City of Anna, Texas (Owner) Bv: Philip Sanders City Manager ACCEPTANCE OF NOTICE: Receipt of the above notice to proceed is hereby acknowledged by [insert name of contractor], this day of , 20 By: Contractor 62 CHANGE ORDER Date of Issuance: Effective Date: Owner: City of Anna, TX Project: Slayter Creek Trail, Phase H Contract changes are approved as follows: Description of changes: Reason for Change Order: Attachments: CONTRACT PRICING NOR Original Contract Amount including Add/Alternates: $ Net Increase from Previous Change Orders: $ Contract Price Prior to this Change Order: $ Net Increase/Decrease of this Change Order: $ Contract Price with All Approved Change Orders: $ City of Anna, TX By: Philip Sanders, City Manager Date: Please sign both copies; return one copy to c/o [Insert name of project manager] PO Box 776 Anna, TX 7540M776 [Insert Name of Contractor] By: [Insert name of signator] Date: City of Anna, TX 63 SUPPLEMENTARY GENERAL PROVISIONS AND TECHNICAL SPECIFICATIONS Section 1. SUPPLEMENTARY GENERAL PROVISIONS 1.01 PURPOSE OF SUPPLEMENTARY GENERAL PROVISIONS: This project shall be constructed in accordance with the current City of Anna Standard Specifications ("Standard Specifications"), which include the Standard Specifications for Public Works Construction, latest edition, and which for the purposes of this Contract Agreement also include the these Supplementary General Provisions; provided that where any discrepancies occur between the Supplementary General Provisions and the Standard Specifications, the Supplementary General Provisions shall govern. The Supplementary General Provisions are included herein for the purpose of adapting the Standard Specifications to the project which is the subject of the Contract Agreement and of adding thereto such further provisions as may be necessary to state the agreement in its entirety. 1.02 SCOPE OF WORK: A. Work is to be done in accordance with City of Anna Standard Specifications. B. The work done under the contract documents shall consist of the following: Slayter Creek Trail, Phase II Pedestrian Trail &Bridge Construction Project C. The intent of the contract documents, including the Standard Specifications, General Provisions, Technical Provisions, and other instruments, documents, drawings, maps, etc., comprising the Plans and Specifications, is to describe a completed work to be performed by the Contractor under the Contract Agreement as an independent Contractor. D. The contractor shall furnish all labor, superintendence, machinery, equipment and all materials necessary to complete this project in accordance with contract documents. E. The Contractor will maintain at all times on the job site, a superintendent authorized to receive and fulfill instructions from the engineer. F. The Contractor further agrees that no part of the Contract Agreement shall be assigned without prior written approval from City. G. The Contractor hereby further agrees to pay to Owner as liquidated damages the sum specified herein, and quoted below, for each calendar day in excess of the time set forth in the contract documents for completion of this project. Contractor shall anticipate the following number of calendar days for precipitation type weather related delays. 7 days for January; 7 days for February; 7 days for March; 8 days for April; 9 days for May; 7 days for June; 5 days for July; 5 days for August; 7 days for September; 6 days for October; 6 days for November; and 6 days for December. These days shall be anticipated and be included as part of the progress schedule. LIQUIDATED DAMAGES FOR FAILURE TO COMPLETE ON TIME: The time of completion is of the essence for this project. For each day that any work shall remain uncompleted after the time specified in the proposal and the Contract Agreement, or the increased time granted by the OWNER, or as equitably increased by additional work or materials ordered after the Contract Agreement is signed, the sum per day given in the following schedule, unless otherwise specified in the special provisions, shall be deducted from the monies due the CONTRACTOR: m AMOUNT OF CONTRACT Less than $25,000.00 $25,000 to $993999899 $100,000 to $999,999.00 AMOUNT OF LIQUIDATED DAMAGES More than $1,000,000.00 $240.00 $500.00 Per Day Per Day Per Day The sum of money thus deducted for such delay, failure for noncompletion is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages, per day that the CONTRACTOR shall be in default after the time stipulated in the Contract Agreement for completing the work. The said amounts are fixed and agreed upon by and between OWNER and CONTRACTOR because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages which the OWNER would sustain and which shall be retained from the monies due, or that may become due, the CONTRACTOR under this Contract Agreement; and if said monies be insufficient to cover the amount owing, then the CONTRACTOR or its surety shall pay any additional amounts due. In the event that the actual damages incurred by the OWNER exceed the amount of liquidated damages, OWNER shall be entitled to recover its actual damages. 1.03 CONTRACTOR SURETY BONDS: With the execution and delivery of the Contract Agreement, the CONTRACTOR shall furnish and file with the OWNER in the amounts herein required, the surety bonds specified hereunder. Without exception, the OWNER'S bond forms, copies of which are amongst the Contract Documents and incorporated into the Contract Agreement, must be used, and exclusive venue for any lawsuit in connection with such bonds shall be in Collin County. Such surety bonds shall be in accordance with the provisions of Texas Government Code, Chapter 2253, as amended, and Art. 7.19-1 of the Insurance Code, as amended. These bonds shall automatically be increased by the amount of any change order or supplemental agreement which increases the Contract Agreement price with or without notice to the surety, but in no event shall a change which reduces the Contract Agreement amount reduce the penal amount of such bonds. If the surety on any Bond furnished by the CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated or ceases to meet the requirement as set forth above, CONTRACTOR shall within 20 days thereafter substitute another Bond or surety which complies with the requirement hereto. A. PERFORMANCE BOND: A good and sufficient bond in an amount not less than 100- percent of the approximate total amount of the Contract Agreement, as evidenced by the proposal tabulation, or, conditioned on the faithful performance of the work in accordance with the plans, specifications and Contract documents, including performance of any guarantees or warranties required by OWNER, and including any extensions thereof, for the protection of the OWNER. This bond shall also provide for the repair and/or replacement of all defects due to faulty materials and workmanship 65 that appear or become known within a period of one year from the date of completion and acceptance of the improvement by the Owner or such lesser or greater period as may be designated in the Contract Documents. B. PAYMENT BOND: A good and sufficient bond in an amount not less than 100-percent of the approximate total amount of the Contract Agreement, as evidenced by the proposed tabulation, or otherwise solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime CONTRACTOR or a subcontractor to supply public work or material. C. MAINTENANCE BOND: A maintenance bond in the amount of 100% of the total bid price shall be executed by the contractor as principal and by a corporate surety acceptable to the owner. Said bond shall secure maintenance by the contractor on the project made the subject of the Contract Agreement for two (2) years from the date of acceptance of work by the owner. D. SURETIES: No sureties shall be accepted by the OWNER who are now in default or delinquent on any bonds or who are interested in any litigation against the OWNER. All bonds shall be made on forms furnished by the OWNER, and shall be executed by not less than one corporate surety authorized to do business in the State of Texas and acceptable to the OWNER. Each bond shall be executed by the CONTRACTOR and surety. Each surety shall designate on the bond the name, address and phone number of a representative for the surety located in a county of the State of Texas acceptable to the OWNER to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. The OWNER reserves the right to reject and all sureties. E. Additional or Substitute Bonds. If at any time the OWNER is or becomes reasonably dissatisfied with any surety of Cl performance or payment bond, the CONTRACTOR shall, within five days after notice from the OWNER to do so, substitute an acceptable bond (or bonds), or provide any additional bond, and such form and sum and signed by such other surety or sureties as may be reasonably satisfactory to the OWNER. The premiums on such bond shall be paid by the CONTRACTOR without recourse to the OWNER. No further payments under the Contract Agreement shall be deemed due or payable until the substitute or additional bonds have been furnished to and accepted by the OWNER. 1.04 LIMITATION OF LIABILITY, INDEMNIFICATION AND INSURANCE: A. LIMITATION OF LIABILITY: The CONTRACTOR affirmatively represents that he is skilled and experienced in the use and interpretation of drawings and specifications such as those included in the Bid Documents of this Contract Agreement. Further, he also affirmatively represents that he has carefully reviewed the drawings and specifications of this Contract Agreement and that he has based his Bid solely on these documents, not relying in any way on any explanation or interpretation —oral or written —from any other source. Unless the CONTRACTOR shall give written notice to the design professional of any ambiguities contained in the drawings or specifications prior to the submission of his bid, the CONTRACTOR agrees that he shall be conclusively presumed that the CONTRACTOR has exercised his aforementioned skill and experience and found the drawings and specifications sufficient and free from ambiguities, errors, or omissions for the purpose of determining his Contract Bid Price for the performance of the work in conformity with the drawings and specifications. Submission of a Bid without prior written notice to the OWNER'S Agent or any claimed ambiguities, errors or omissions shall constitute a waiver of any and all bid -price -related claims by the CONTRACTOR that are based upon any alleged ambiguities, errors, omissions or the like in the drawings or specifications. B. INDEMNIFICATION: The CONTRACTOR agrees to indemnify, defend and save harmless the OWNER and the Engineer, their consultants, agents and employees from and against all loss or expense (including costs and attorney fees) by reason of liability imposed by law upon the OWNER, Engineer, consultants, agents and employees for damages including bodily iniury, including death and property damage, including loss of use, sustained by any person or persons, arising out of or in consequence of the performance of this work, whether such iniuries to person or damage to property is due or claimed to be due to the negligence of the CONTRACTOR, his sub -contractors, the OWNER, the Engineer, their consultants, agents and employees, except only such iniury or damage as shall have been occasioned by the sole negliqence of the OWNER, Engineer, Consultant, and/or other Agents. C. INSURANCE: The CONTRACTOR shall comply with each and every condition contained herein. The CONTRACTOR shall provide and maintain, at his sole cost and expense, until the work covered in the Contract Agreement is completed and accepted by the City of Anna, the minimum insurance coverage as follows: 1. Commercial general liability insurance at minimum combined single limits of $1,000,000 per -occurrence per -project and $2,000,000 general aggregate per - project for bodily injury and property damage, which coverage shall include products/completed operations ($1,000,000 products/completed operations aggregate), and XCU hazards. Coverage for products/completed operations must be maintained for at least two (2) years after the construction work is completed. Coverage must be maintained to cover the contractor's obligations outlined in the Contract Agreement. 2. Definitions: a) 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. b) 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. c) The contractor shall 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 employees of the contractor providing services on the project, for the duration of the project. d) The contractor must provide a certificate of coverage to the governmental entity prior to being awarded the Contract Agreement. e) 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. f) 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 cercates 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. g) The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. h) 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, or any change that materially affects the provision of coverage of any person providing services on the project. i) The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, information all persons providing services on the project that they are required to be offered, and stating how a person may verify coverage and report lack of coverage. j) 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 Cl" 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. k) By signing the Contract Agreement 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. I) The contractor's failure to comply with any of these provisions is a breach of Contract Agreement by the contractor which entities the governmental entity to declare the Contract Agreement void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. 3. Comprehensive Automobile and Truck Liability Insurance, covering owned, hired and non -owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000.00 per occurrence; or separate limits of $500,000.00 for bodily injury (per person); $500,000.00 for bodily injury (per accident) and $100,000.00 for property damage. Such insurance shall include coverage for loading and unloading hazards. 4. Payment and performance bonds in the amount of the contract price and on the form as provided in the contract documents. PLEASE NOTE: The required limits may be satisfied by any combination of primary, excess, or umbrella liability insurances, provided the primary policy complies with the above requirements and the excess umbrella is following form. The contractor may maintain reasonable and customary deductibles, subject to approval by the City of Anna. A comprehensive general liability insurance form may be used in lieu of a commercial general liability insurance form. In this event, coverage must be written on an occurrence basis, at limits of $1,000,000 per -occurrence, combined single limit, and coverage must include a broad form comprehensive general liability endorsement, coverage for products/completed operations, no restrictions on XCU hazards, and broad form contractual liability covering the obligations included in the Contract Agreement. With reference to the foregoing insurance requirement, Contractor shall specifically endorse applicable insurance policies as follows: a. The City of Anna shall be named as an additional insured with respect to general liability and automobile liability. b. All liability policies shall contain cross liability and severability of interest clauses. c. A waiver of subrogation in favor of the City of Anna shall be contained in the workers' compensation insurance policy. d. All insurance policies shall be endorsed to require the insurer to immediately notify the City of Anna of any material change in the insurance coverage. e. All insurance policies shall be endorsed to the effect that the City of Anna will receive at least sixty (60) days notice prior to cancellation of termination of the insurance. All insurance shall be purchased from an insurance company that meets the following requirements: a. A financial rating of AM or better as assigned by the BEST Rating Company in the most current edition of its manual. b. Licensed and admitted to do business in the State of Texas. �o All insurance must be written on forms filed with and approved by the Texas State Board of Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and shall contain provisions representing and warranting the following: a. The company is licensed and admitted to do business in the State of Texas. b. The insurances set forth by the insurance company are underwritten on forms which have been approved by the Texas State Board of Insurance. c. Sets forth all endorsements and insurance coverages according to requirements and instructions contained herein. d. Shall specifically set forth the notice of cancellation or termination provisions to the City of Anna. Upon request, contractor shall furnish the City of Anna with certified copies of all insurance policies. 1.05 ADDENDUM: The owner reserves the right to issue an addendum prior to accepting bids for the work. Such addendum(s) shall be, and are hereby made a part of these specifications. Upon receipt of the addendum(s), the Contractor shall acknowledge their receipt by listing the addendum(s) and signing in the appropriate spaces in the Proposal. 1.06 CONSTRUCTION WATER: Construction water necessary for the normal construction of this project will not be provided free to the Contractor. All construction water will be metered by City owned meters or meter(s) owned by the Contractor. A deposit of two hundred fifty dollars ($250.00) is required for a 2'/2 inch City owned construction meter. The deposits) shall be paid at the Utility Office, located at 101 North Powell Parkway, Anna, Texas 75409, prior to the use of meter. City owned meter(s) will be installed by the City Utility Department, after the deposit has been made. The meter(s) will be read and billed each month in accordance with the current Customer Services Policy. Any damage that occurs to a City meter during use will be repaired by the City at the expense of the Contractor. The cost of the repairs will be deducted from the deposit and the remaining deposit returned to the Contractor. This procedure will be followed wherever construction water is needed. No exceptions to the rule will be sanctioned. If the meter is set on a fire hydrant, a valve shall be provided so that the flow of the water is not controlled by the operating nut on the fire hydrant. Where water is necessary only to settle dust on the street, at the request of the property owners, the Project Engineer or Project Inspector will notify the Contractor. The necessary application of water for dust shall be considered subsidiary to the other bid items listed in the Proposal and Bid Form of the Contract Agreement. 1.07 DETOURS AND BARRICADES: The Contractor shall, before closing any street or causing any obstruction to traffic on any street, furnish and erect suitable barricades and warning si wgns to protect the traveling public. The barricades and warning signs will be constructed, placed, and adequately maintained as directed by the Project Engineer. All barricades and warning signs shall conform to and be set in accordance with the Texas Manual on Uniform Traffic Control Devices (TMUTCD) 71 No direct compensation will be made to the Contractor for furnishing, installing, and maintaining barricades and warning signs and their subsequent removal. This is to be considered subsidiary to the several items for which unit prices are requested in the PROPOSAL. 1.08 TRENCH SAFETY: On all trenching in excess of five feet below existing grade, the Contractor shall comply with the standards promulgated by the Occupational Safety and Health Administration (OSHA), of the United States Government, regulating excavations, trenching and shoring. Contractors shall refer to and abide by all OSHA regulations published in 29 CFR 1926, et seq., July 1989 edition, and any revisions thereto published in the Federal Register which may become effective during the period of construction. The contractor's attention is directed to the separate Bid Item for trench safety systems, based on the linear feet of trench excavated, under which full payment will be made for trench safety systems, including any additional excavation and back fill required; sheeting, and bracing; for dewatering or diversion of water; for all jacking and jack removal; and for all other labor, materials, tools, equipment, acquisition of soils information and design of trench safety systems, and incidentals necessary to complete the work. Changes made in the trench safety system after the initiation of construction will not be cause for extension of time, claims for delay or approval of change orders. It is the sole duty, responsibility and prerogative of the Contractor, not the Owner or Engineer, to perform all trenching in a safe manner and in accordance with OSHA regulations. Any apparent unsafe trenching conditions observed by Owner, Engineer, or their representatives on the site, shall be reported to OSHA as well as to Contractor's job superintendent. Work stoppages or corrective actions required of contractor by OSHA shall not be cause for extension of time, claims for delay or approval of change orders. The Contractor shall indemnify and hold harmless the City, its employees and agents, from any and all damages, costs (including, without limitation, legal fees, court costs, and the cost of investigation), judgments or claims by anyone for injury or death of persons resulting from the collapse or failure of trenches constructed under the Contract Agreement. The Contractor acknowledges and agrees that this indemnity provision provides indemnity for the City in case the City is negligent either by act or omission in providing for trench safety, including, but not limited to inspections, failure to issue stop work orders and the hiring of the Contractor. 1.09 PRICE FOR MATERIALS AND STATE SALES TAX: After award of the Contract Agreement, the City of Anna will, on written request of the Contractor, furnish the Contractor with a certificate of exemption from Texas Limited Sales, Excise, and Use Tax in an amount not exceeding the above mentioned bid price for materials and other tangible personal property as stated in the request form. Such written request must contain a statement to the effect that such materials or property have been or will be utilized in the performance of the Contract Agreement to the full extent of the amount for which a certificate of exemption is requested. �z 1.10 ACCESS TO PRIVATE PROPERTIES: The Contractor will put all private drives in an accessible condition to allow residents ingress and egress before leaving the job site for an extended period of time except during the pouring and curing of drive approaches. "Extended period of time" is defined as overnight, weekends, holidays, or periods of inclement weather. The Contractor will leave with the PROJECT ENGINEER the phone numbers of responsible persons available twenty-four (24) hours a day to handle emergencies concerning egress and ingress. If a vehicle becomes stranded due to an inaccessible condition, any legitimate claims arising from such conditions shall be the sole responsibility of the Contractor. If such claims are not settled prior to the monthly pay estimate, they shall be deducted from that estimate. 1.11 USE OF PRIVATE PROPERTY: The Contractor shall not at any time use private property to park or turn around construction vehicles or store equipment and/or materials without the written permission of the property owner involved. The Contractor shall not at any time use water metered by meters set for the property owners use without written permission of the property owner. 1.12 PROTECTION OF ADJOINING PROPERTY: The Contractor shall be responsible for the protection of all fences, trees, and other improvements on the property adjoining the construction sites from damage by the Contractor's equipment and men. 1.13 PROTECTION OF EXISTING UTILITIES: The Contractor shall make every effort to protect existing utilities. Telephone, gas, and electric lines occur within the construction limits of this project and should be avoided during construction. 1.14 CLEANUP: It is the intent of the Contract Agreement to ensure that an adequate cleanup job be performed by the Contractor as soon during the construction procedure as possible. Before the project is accepted by the City, all rocks, stones, and other construction debris shall be removed to the satisfaction of the Engineer. All necessary cleanup work shall be considered subsidiary to the various bid items on the Contract Agreement. 1.15 GOVERNING DOCUMENTS: The work shall conform to the requirements of these specifications and the details as shown on the drawings. These contract documents are intended to be complementary. Requirements of any of the contract documents are as binding as if called for by all. In the event of conflict between the Contract Agreement and any other contract documents, the Contract Agreement shall govern. In the event of conflict between the drawings and the specifications, the project engineer's interpretation of the drawings shall have priority. In case of conflict between the referenced specifications and the project specifications, the project specifications shall govern. 1.16 SCHEDULE: The Contractor shall provide the project engineer with a schedule of the proposed work upon request. 1.17 MONTHLY ESTIMATE: Monthly estimates shall be processed as specified by the North Central Texas Council of Governments Standard Specifications for PUBLIC Works Construction, Item 109.5. 73 1.18 SAFETY: Safety precaution shall be used at all times during progress of the work. As appropriate, workman shall be furnished with hard hats, safety shoes, protective gloves, and any other safety apparel that the Contractor determines will reduce the possibility of accidents. The Contractor shall be solely responsible for ensuring the safety of its crew(s), employees and subcontractors, along with the safety of the public, as the work required by these contract documents is performed. 1.19 STOCKPILE/EQUIPMENT AREAS: It shall be the responsibility of the Contractor to secure stockpile areas and equipment storage areas. 1.20 BOUND COPY OF CONTRACT DOCUMENTS: Bidder understands and agrees that the Contract Agreement to be executed by offeror/bidder shall be bound and include the documents set forth as such in the Contract Agreement. 1.21 DRUG -FREE WORKPLACE POLICY: It is the Owner's policy to maintain adrug-free workplace. The Contractor agrees to implement during the progress of this Contract Agreement a drug -free workplace policy. The policy shall include the following provisions: A. Contractor shall have adrug-free workplace policy; B. Contractor shall have a drug awareness program; C. Contractor shall require all employees to receive a copy of the drug -free workplace policy; D. Contractor shall notify Owner of any employee conviction arising from drug use; E. Contractor shall make a "good faith" effort to continue to maintain a drug -free workplace. 1.22 TEXAS STATE SALES TAX: The Contract Agreement is issued by an organization which quaes for exemption provisions pursuant to provisions of Article 20.04 of the Texas Limited Sales, Excise and Use Tax Act. The Contractor must obtain a limited sales, excise and use tax permit which shall enable him to buy the materials to be incorporated into the work without paying the tax at the time of purchase. 1.23 LABOR AND WORKING HOURS: Attention of each bidder is particularly called to the schedule of general prevailing rate of per diem wages included in these contract documents. The wage rate which must be paid on this project shall not be less than specified in the schedule of general prevailing rates of per diem wages as above mentioned. The bidder's attention is further directed to the requirements of Article 5159a, Vernon's Annotated Civil Statutes, providing for the payment of the wage schedules above mentioned and the Bidder's obligations thereunder. The inclusion of the schedule of general prevailing rate of per diem wages in these contract documents does not release the Contractor from compliance with any wage law that may be applicable. Construction work under the Contract Agreement requiring an inspector will not be performed on weekends or holidays unless the following conditions exist: 74 A. The project being constructed is essential to the City of Anna's ability to provide the necessary service to its citizens. B. Delays in construction are due to factors outside the control of the Contractor. The Contractor is approaching the time when the liquidated damages provisions of the Contract Agreement become applicable and Contractor can show he has made diligent effort to complete the project within the allotted time. Standard working hours are Monday through Friday, 8:00 a.m. - 5:00 p.m., not including the following holidays: New Year's Day, Dr. Martin Luther King's Birthday, Good Friday, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Friday after Thanksgiving, Christmas Eve, and Christmas Day. Any of these holidays falling within a weekend may be designated to a Monday or Friday at the discretion of the City. Before construction work requiring an inspector is to be performed on weekends or holidays, the Contractor must notify the Engineer not less than three (3) full working days prior to the weekend or holiday he desires to do work and obtain written permission from the Engineer to do such work. The final decision on whether to allow construction work requiring an inspector on weekends or holidays will be made by the Engineer. In any event, if a condition should occur or arise at the site of this project or from the work being done under this contract which is hazardous or dangerous to property or life, the Contractor shall immediately commence work, regardless of the day of the week or the time of day, to correct or alleviate such condition so that it is no longer dangerous to property to life. 1.24 TWO-YEAR MAINTENANCE BOND: Prior to final acceptance the Contractor shall furnish the City of Anna a maintenance bond to guarantee against defects in the construction or equipment furnished for the project for two years following acceptance. The bond shall be executed by a surety company holding a license to do business in the State of Texas and acceptable to the City of Anna, in an amount equal to one hundred (100) percent of the Contract Agreement. 1.25 AMERICAN DISABILITIES ACT: "Any person, firm business, partnership, or corporation that provides a service or function to the public or employees, agents or officials of the city of which is performed on behalf of the City of Anna, shall comply with 42 U.S.C. 1210-12213 and any amendments thereto, known as the "American Disabilities Act of 1990" A It 1.26 USE OF SUBCONTRACTORS: Upon award of bid, Contractor shall provide City with a list of all possible subcontractors the Contractor may use for the project. City reserves the right to exclude any subcontractor from the project that it reasonably deems unacceptable for the project. The City shall notify contractor in writing of its intent to exclude any subcontractor. 1.27 RIGHT TO SHUT DOWN: The City, through its owner representative or otherwise, reserves the right to shut down the project. 1.28 UNCONTROLLABLE CIRCUMSTANCES: In the event a Party hereto cannot fully perform its obligations hereunder due to the intervention of an "Uncontrollable 75 Circumstance", as that term is defined below, then, providing such Party has fully complied with the provisions of this section, such Party shall be excused from such performance but only to the extent and only in the manner set forth herein. For the purposes of this Agreement an Uncontrollable Circumstance shall mean: A. With respect to the Contractor: 1. An Act of God in the form of an unusually severe storm, or flood, or fire or similar event, that could not have been anticipated or guarded against which materially affects the work site, including access or egress thereto; 2. A riot or war situation actually involving the site or actually preventing the Contractor from working on the site, but not including any situations involving suppliers off -site other than those essential suppliers set forth in Exhibit A*; 3. An unanticipated strike involving the forces actually working on the project or involving the employees of those essential suppliers set forth in Exhibit A*, but no other labor stoppage. * Contractor must set forth essential suppliers in an Exhibit A within five (5) business days of award of final contract. Provided however, that no such claimed Uncontrollable Circumstance shall be deemed an Uncontrollable Circumstance for the purposes of this Agreement unless such event actually and directly necessitated a delay in the work around the delays resulting from such Uncontrollable Circumstance. B. With respect to the Owner, an Uncontrollable Circumstance shall mean: 1. The inability to deliver the Site to the Contractor as scheduled due to the intervention of a third Party such as a Court or an agency of a higher level of government. 2. The inability of the Owner to perform its oversight, review and approval functions due to the actual strike of its employees or those of its essential consultants employed for such purpose, but only for such reasonable period of time as might actually be required to replace such forces. In the event either Party is he victim of an Uncontrollable Circumstance as that term is defined above, such Party shall put the other on written notice as soon as practicably possible. Such notice shall specify the Uncontrollable Circumstance and the anticipated affect it will have on that Party's abilities to perform its obligations under the Contract Agreement. As soon thereafter as is practical, but in any event within ten (10) days of such Uncontrollable Circumstance, the affected Party shall provide the other Party, in writing, with its plan to deal with the affects of such Uncontrollable Circumstance and with its proposed amendments to all affected schedules necessarily resulting therefrom. VION 1.29 CONSTRUCTION SUPERVISION: The Contractor will, at all times, maintain one project superintendent per project who will provide the following functions. He/she will be on site when and where construction activity occurs. He/she will maintain communication with all subcontractors and contractor employees performing construction activities. He/she will be available 24 hours a day, for the duration of the project, for emergency calls concerning events at project sites. He/she will accept no additional responsibility from the Contractor which would inhibit the performance of the above stated functions. In the event that the project consists of multiple sites, the project superintendent will identify to the Owner a responsive person at each site with construction activity. The project superintendent will maintain communication with that responsible person during all construction activity. In this even, the project superintendent will not be identified as a responsible person for any given site. If the Owner determines that the performance of the above functions is not being maintained at any time, the Owner reserves the right to shut down the project, at the contractor's expense, until performance of said functions is restored. 1.30 CONFINED SPACE POLICY: CONTRACTOR will be responsible for the establishment and coordination of and required compliance with a Confined Space Entry Program as required by federal law and City ordinance and shall inform the OWNER of said program. CONTRACTOR will obtain any available information regarding permit space hazards from the OWNER and will coordinate all entry operations with the OWNER. CONTRACTOR shall provide, install, operate, and maintain such monitoring, ventilation, and personal protective equipment to provide access to any and all confined space as required by Contractor's Confined Space Entry Program. Said equipment shall meet or exceed the requirements of the Occupational Safety and Health Act (OSHA), federal, state, and local authorities. CONTRACTOR shall provide labor, equipment, and materials necessary to place, operate, and maintain the said equipment as necessary for entrance into confined spaces by the CONTRACTOR or OWNER. At no time shall work be done by the CONTRACTOR within confined spaces without providing said equipment. Payment for this item shall be subsidiary to all other pay items. 1.31 TEMPORARY SUSPENSION OF WORK: CONTRACTOR may from time to time be required by OWNER to temporarily suspend project operations in one area and to commence or continue project operations in another area. OWNER may make such_requirement for any reason which OWNER deems reasonable and/or necessary, including but not limited to as a result of a court order, failure by the OWNER to secure the necessary easements, right of way, or permits required, conflicts between existing or contemplated utilities and the work, and Acts of God. Such requirement may be oral or may be in writing. In the event that the CONTRACTOR is delayed for sixty (60) or less days as a result of any temporary suspension as described above, CONTRACTOR shall not be entitled to nor shall such delay serve as the basis as a claim for additional compensation to CONTRACTOR or damages for mobilization, re -mobilization, or any other damages sustained or alleged to have been sustained by CONTRACTOR. 1.32 FINAL COMPLETION AND ACCEPTANCE: Within ten (10) days after the CONTRACTOR has given the Engineer written notice that the work has been completed, or substantially completed, the Engineer and the OWNER shall inspect the work and within said 77 time, if the work be found to be completed or substantially completed in accordance with the Contract Documents, the Engineer shall issue to the OWNER and the CONTRACTOR his Certificate of Acceptance of the work to the CONTRACTOR or to advise the CONTRACTOR in writing of the reason for non -acceptance. 1.33 FINAL PAYMENT: Upon the issuance of the Certificate of Completion, the Engineer shall proceed to make final measurements and prepare final statement of the value of all work performed and materials furnished under the terms of the Agreement and shall certify same to the OWNER, who shall pay to the CONTRACTOR on or after the 30th day, and before the 35th day, after the date of the Certificate of Completion, the balance due the CONTRACTOR under the terms of this Agreement, provided he has fully performed his contractual obligations under the terms of the Contract Agreement; and said payment shall become due in any event upon said performance by the CONTRACTOR. Neither the Certificate of Acceptance nor the final payment, nor any provision in the Contract Documents, shall relieve the CONTRACTOR of the obligation for fulfillment of any warranty which may be required. 1.34 PAYMENTS WITHHELD: The OWNER may, on account of subsequently discovered evidence, withhold or nullify the whole or part of any certificate to such extent as may be necessary to protect himself from loss on account of: (a) Defective work not remedied. (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the CONTRACTOR to make payments properly to subcontractors or for material or labor. (d) Damage to another contractor. (e) Reasonable doubt that the work can be completed for the unpaid balance of the Contract Agreement amount. (f) Reasonable indication that the work will not be completed within the contract time. When the above grounds are removed or the CONTRACTOR provides a Surety Bond satisfactoI to the OWNER, which will protect the OWNER in the amount withheld, payment shall be made for amounts withheld because of them. Section 2. TECHNICAL SPECIFICATIONS 2.01 PURPOSE OF TECHNICAL SPECIFICATIONS: This project shall be constructed in accordance with the current City of Anna Standard Specifications ("Standard Specifications"), which include the Standard Specifications for Public Works Construction, latest edition, and which for the purposes of this Contract Agreement also include the the Supplementary General Provisions and these Technical Specifications; provided that where any discrepancies occur between the Technical Specifications, the Supplementary General Provisions and/or the Standard Specifications, these Technical Specifications shall govern. The Technical Specifications are included herein for the purpose of adapting the Supplementary General Provisions to the project which is the subject of the Contract Agreement and of adding thereto such further provisions as may be necessary to state the agreement in its entirety. 78 2.02 HOT MIX ASPHALTIC CONCRETE PAVEMENT SURFACE COURSE: All HIM pavement surface course and base course shall be provided in accordance with North Central Texas Council of Governments Public Works Construction Standards 2004 or later. The Contractor shall furnish job mix design (JMF) and material certification prior to any work. Contractor shall be responsible throughout project for quality control of material in accordance with design and North Central Texas Council of Governments Public Works Construction Standards 2004 or later. The job mix formula can be adjusted as long as it does not exceed the Master Grading Limits as specified in North Central Texas Council of Governments Public Works Construction Standards 2004 or later. 2.03 LEVEL -UP COURSE: Where directed by the Engineer, a first course, or leveling -up course, shall be laid to bring the street surface to a uniform grade or section. Contractor will use a grade 30 felt to cover appurtenance prior to levekup. This course may be bladed into place and rolled. The material for the levekup will be fine graded asphaltic concrete surface coarse (Type "D"), and will be paid for at the contract unit price. At the completion of the levekup coarse, the street will be swept by a mechanical broom and all loose material will be removed. Contractor shall provide plant mix design and material certification prior to any work. 2.04 ADJUSTMENTS TO EXPOSED UTILITY APPURTENANCES: Any water, sanitary sewer or storm sewer appurtenances encountered by the Contractor during construction will be adjusted by the Contractor to conform to the finished surface of the street. Contractor will take every care in the recovery of previously unlocated appurtenances. The Contractor must keep all sanitary or storm sewers clear of dirt or debris resulting from any construction operations. The Contractor is fully responsible for all damage and loss to utility appurtenances and facilities caused by his operations. Care must be exercised at all times to avoid damage or interruption of service. In the event that the Contractor, having taken every care for the recovery of previously unlocated appurtenances, damages a previously unlocated City owned appurtenance, the City will provide the cast replacement materials needed for the adjustment to be completed. Adjustments to any appurtenance must be done in a manner which is, and with materials that are, acceptable to the owner. See attached drawings for information on the adjustment of City of Anna Utility appurtenances. It is the intention of the City that all adjustments of utility -owned facilities be completed in advance of placement of the new asphaltic concrete surfaces. Adjustment of City owned appurtenances shall be done following resurfacing. The Contractor will endeavor to reuse existing castings, covers or other material parts. Extension rings will not be acceptable. The Contractor shall use Grade 30 Felt Paper to cover the appurtenance prior to Construction/Improvements. Upon Completion of asphalt resurfacing, the Contractor will mark all appurtenances with permanent type paint on the new surface for easy location. Adjustments will be made no more than five (5) at a time. When five (5) appurtenances have been exposed for adjustment, the Contractor will have three (3) days to complete said adjustments. Clean-up will be 79 completed before the next five (5) appurtenances can be started. This is required in addition to Section 12-13 of General Technical Provisions. Payment for appurtenance adjustments will be included in monthly partial payments as the work is completed. This does not relieve the Contractor from the responsibility for making final corrections as may become necessary before the contract is accepted for final payment. The contract unit price for each item will be full compensation for removal and salvage of the existing appurtenance, for all required cleaning before reinstallation, for all cutting or rebuilding necessary to match the finished grade of the paving, for replacement of all damaged or lost parts, for new parts which may be necessary to match the height of the proposed surface, for protecting facilities to assure continuous and uninterrupted service, for the asphaltic concrete patching to protect traffic, and of all material, labor, and equipment costs to satisfactorily complete the adjustments in accordance with these specifications and to the satisfaction of the Engineer. Contracted price for adjustment of any utility appurtenances will not be subject to renegotiations due to underrun of contract quantity. 2.05 PROJECT SIGNS: The Contractor on this project shall provide and erect up to two (2) project signs as required. Generally, project sign shall be located at the beginning and end of the project street sections and on major intersecting streets. Locations of signs will be as indicated by the Owner's representative. The sign shall be substantially in accordance with the drawing enclosed as part of these specifications. Construction shall be on 3/4" weatherproof (marine) plywood and the painting shall be accomplished with good quality paint which will not weather or fade excessively during life of contract. Sign colors shall be as indicated or equivalent color values as provided by other manufacturers. Signs shall be placed in prominent locations and maintained in good condition until the completion of the project. Damaged or defaced signs will be repaired within two working days at the Contractor's expense. The cost of the sign(s) shall be considered subsidiary to the unit prices bid on this project, unless otherwise noted. Signs shall become the property of the City of Anna after completion of the project. 2.06 POSTING SIGNS: The Contractor is the Public Works Director's authorized designee to post notice of street improvement. The following stipulations will apply: A. 48 hours prior to the commencement of each phase of construction/improvements, i.e. base repair, level up, milling, or resurfacing is scheduled to start, the contractor will place "NO PARKING" signs at locations where plainly visible to all on -street parking areas and in sufficient number that the message can be read from any parking space, approximately 75 to 100 feet apart. Signs must be placed at the ends of each project street sections where they can be clearly seen by approaching traffic. B. IN PARKING" signs must be used notifying persons that it is unlawful to park vehicles in the street, specifying the location, time, and dates, and a failure to observe this restriction will result in towing and/or penalty according to Ordinance No. 90-182. No separate or additional pay will be made for complying with the requirements of this special provision. No phase of construction/improvement may start until posting of signs is complete. 2.07 REMOVAL OF VEHICLES: The Contractor will be responsible for removal of vehicles which obstruct each phase of construction/improvement. The Engineer recommends that the Contractor engages the services of an off -duty police officer whenever private vehicles are to be towed. The Contractor must assume all responsibility for moving vehicles and handle all claims which may arise. No separate or additional pay will be made for complying with the requirements of this special provision. 2.08 TRAFFIC MOVEMENTS AND SCHEDULE OF OPERATIONS: Construction/improvements shall be scheduled to produce a minimum of interference to the movement of traffic. All streets are to remain open and usable to traffic during work operations by maintaining a minimum of one lane clear obstructions. The Contractor will provide flagmen as required to control traffic through the site. When not in use, equipment and machinery shall be removed from the street and out of the flow of traffic. Contractor shall provide (1) flagperson per intersection during all liming operations to stop all vehicular and pedestrian traffic from entering project area until work is completed. If any street is required to be closed on Saturday or Sunday, any legal city holiday, or on weekdays between the hours of 5:00 p.m. and 8:00 a.m., permission must be obtained in advance from the Engineer and all proper entities must be notified by the Contractor. Traffic control and street name signs shall not be torn down, covered or otherwise removed from the clear view of the driver or pedestrian. Restricted work hours and limited operations may be required on other thoroughfares and collector streets as directed by the Engineer. Nighttime, weekend and holiday work at any location requires specific approval in advance by the Engineer. 2.09 ADVANCE NOTICE OF CONSTRUCTION OPERATIONS: The Contractor will be required to distribute advance notices of proposed construction/improvements. These notices will be furnished by the City and will take the form of door -hangers. They must be distributed 48 hours in advance of scheduled operations and will be hand delivered and placed in an obvious location at each separate building or dwelling on the street. They will not be placed in mail boxes. No phase of construction/improvement may start until advance notices have been distributed. THE CONTRACTOR WILL BE REQUIRED AND IS RESPONSIBLE TO PUBLISH IN THE MCKINNEY COURIER GAZETTE 48 HOURS IN ADVANCE ANY SCHEDULED OPERATIONS OF STREETS THAT WILL HAVE CONSTRUCTION/ IMPROVEMENTS. A COPY OF THE NEWSPAPER ARTICLE WITH THE PUBLISHED STREETS WILL BE FURNISHED TO THE ENGINEER ON REQUEST. THE COST WILL BE PAID BY THE CONTRACTOR. The Contractor will be expected to make every gent effort to prevent parking of vehicles on the street which may conflict with his construction operations. No additional compensation will be paid for this item but the cost shall be included in such pay items as are provided in the proposal. 2.10 PAYMENT OF TESTING: Testing of Materials -Samples of materials for testing shall be taken by, and at the discretion of the City. The initial testing of any sample material shall be made at the expense of the City. In the event the initial testing does not comply with the specifications, all subsequent testing to determine acceptability of the same or replacement material, will be conducted by the City secured laboratory at the Contractor's expense. All additional coring or concrete breaks must be done on or before the twenty-eighth (28) day after the material is placed. 2.11 VEGETATION MANAGEMENT: Construction Methods - It shall be the Contractor's responsibility to blade all grass out of the roadway area. All deleterious material shall be removed before spraying. The affected area shall be sprayed with Round Up (41 %) herbicide, a product of the Monsantos Corporation or equal. The edge of the streets and other areas will be sprayed for at least a three (3) foot width or as directed by the Engineer. Herbicide will be sprayed before the asphalt is installed. The City of Anna will not be responsible for losses or damage resulting from the use of this product in any manner not specifically recommended by PBI/Gordon. The Contractor assumes all risks associated with such non -recommended use. f+�ii►•IMP►L�>�_��•�1�1�1=1.��_V/_\�[�7►� A. Description - Prior to the actual surface treatment, it will be the Contractor's responsibility to grade areas on or adjacent to the roadways to ensure adequate surface drainage as directed by the Engineer. B. Measurement and Payment - There will be no additional compensation for this work. It will be subsidiary to all other pay items, unless otherwise noted. 2.13 REINFORCED PORTLAND CEMENT CONCRETE PAYMENTS: All Reinforced Portland Cement Concrete Pavements shall be provided in accordance with TXDOT ITEM 360. 2.14 LIME STABILIZATION GENERAL INFORMATION: This item will cover the treatment of existing pavement and subgrade combined to be used as subgrade by pulverizing, adding lime, mixing and compacting material. Prior to any treatment processes all existing utility appurtenances shall be exposed and plainly marked. The existing pavement and subgrade material shall be cut and pulverized to a depth of 6" minimum. The material shall be cut and pulverized until a uniform grading of material is present and approved by the City. Contractor 82 shall furnish type "C" Quicklime Grade "DS" at a rate of 30 LBS/SY. The application and mixing of lime may be accomplished by either "Dry Placing" or "Slurry Placing". The material and lime shall be thoroughly mixed and brought to the proper moisture content as determined by the City. The material shall then be compacted and sealed over to cure for a period of three (3) days. After this curing process is complete, material shall be remixed until a uniform grading is acquired and approved by the City. During remixing water shall be added as directed by the City and as soon as proper material grading is achieved, compaction process shall begin. Compaction shall continue until the entire depth of material is uniformly compacted to a density of 95 percent as determine by test method TEX-113-E and moisture is -2 to +3 of optimum moisture content. After compaction, material shall be finished to the lines and grades as required by the City and finish rolled with a pneumatic tire roller. The material shall then be treated with a prime coat at a rate of .10 to .20 gallons per square yard as determined by the engineer. During this process material shall be protected from traffic until prime coat has cured. Material shall be covered with Hot Mix Asphaltic Pavement as soon as possible, but no longer than seven (7) calendar days. If material is not covered within required time limit, subgrade will be inspected by the City to determine if the contractor will be required to rework the entire section. 2.15 CEMENT STABILIZATION GENERAL INFORMATION: All Cement Stabilization shall be provided in accordance with TXDOT ITEM 275. 2.16 FLEXIBLE BASE GENERAL INFORMATION: All Flexible Base shall be provided in accordance with TXDOT ITEM 247. 2.17 ASPHALT ANTISTRIPPING AGENT: A. Description. This item shall govern for furnishing and blending an antistripping agent into the asphalt for use in asphaltic concrete pavement mixtures or asphalt stabilized base mixtures when designated on the plans and as directed by the Engineer. B. Materials. The anti -stripping agent shall be a uniform liquid at 77°F. It shall show no significant loss in effectiveness when the asphalt -agent blend is held for three days at 350° F. The anti -stripping agent shall be evaluated in laboratory mixtures with the materials and design proposed for use. Unless otherwise indicated in the plans, the mix shall be evaluated using Test Method Tex-531-C and must evidence a minimum tensile strength ratio of 0.70. The Test Method Tex-531-C Mixing and Molding procedures are amended for material provided under the Special Specification Item, "Hot Mix -Cold Laid Asphaltic Concrete Pavement" by mixing the design aggregates and the asphalt -primer blend (no water) at 2000 plus or minus 5° F, cooling at room temperature for 2.5 hours, curing mix a minimum of 15 hours at 140° F or until constant weight is attained, heating the mix specifications at 1000 plus or minus 5° F for two hours, and molding at 1000 plus or minus 5° F. Plant mixes may be tested by the modified procedure starting with the curing step. The amount of agent used shall be 0.5 to 1.0 percent by weight of the design asphalt, and the actual amount shall be determined based on the results of the evaluation. If plans notes indicate that the mix is to be evaluated using Test Method Tex-530-C, the following shall apply for the material provided under the Special Specification Item, "Hot 83 Mix -Cold Laid Asphaltic Concrete Pavement". The Tex-530-C mixing procedure is amended in that the asphalt, primer (no water) and any anti -stripping agent is blended at 200' plus or minus 5° F, aggregates and binder mixed at 200' plus or minus 5° F, and the mix cured to constant weight at 140' F prior to performing the stripping test. Plant mix may be tested by curing to constant weight and performing the stripping test. As directed by the Engineer, additional samples of the mix produced for the construction item will be obtained during the progress of the work, and tested to determine the continued effectiveness of the asphalt -agent blend. If such testing indicates failure of the mix to meet the stripping resistance required, the Engineer will halt the work until such time as the problem has been corrected by any necessary change in design, materials or mix production. Prior to delivery, a sample of the anti -stripping agent proposed for use shall be furnished to the Department for testing. The anti -stripping agent shall be delivered in unbroken containers with the manufacturer's label properly affixed, or in sealed tank trucks properly invoiced. C. Construction Materials. Handling of the anti -stripping agent shall at all times be in accordance with the manufacturer's recommendations. The agent must not evidence any separation or non - uniformity at time of use. For agents that have high viscosity normal ambient temperatures, the Contractor shall provide a suitable means of warming the material to a proper consistency for blending with the asphalt. The agent shall be added to the asphalt at the rate determined in accordance with subsection B., above, by means of an incline metering device just prior to introduction of the asphalt into the mixing plant. The equipment used must be approved by the Engineer. The Contractor will be required to demonstrate that the equipment is properly calibrated. Unless otherwise shown on the plans, a control section of asphaltic -concrete pavement containing no antistripping agent shall be placed. This control section shall be placed at the location and of the length shown on the plans. D. Measurement and Payment Work performed and materials furnished as prescribed by this Item will not be measured nor paid for directly, but shall be considered subsidiary to the governing specifications for the items of construction in which these materials are used. 2.18 SURFACE AND EDGE MILLING: The existing surface on designated streets will be milled to the depths and dimensions directed by the Engineer. It is not the intention to mill the original concrete base of the street, but concrete patches or other obstructions protruding above the original base and into the surface specified for removal will be milled to conform to the desired section. Variations in depth of milling operations shall not exceed 3/8 inch in the finished surface prior to resurfacing. Surface milling and edge milling will be to depths as shown on the enclosed sketches. Milling round radii of intersections will be required where directed by the Engineer. m Normal milling operations shall be conducted to the edge of all manholes, valves and other appurtenances encountered. If the milling machine can not accomplish this, then milling with hand tools or by other methods shall be employed. No separate compensation will be paid for any milling adjacent to appurtenances that is done with hand tools or by other methods. The milling machine shall self -load the milled material onto an adjacent hauling unit. Water or other approved liquid shall be sprayed on the material being milled to eliminate dust during the milling operation. Brooming and/or sweeping to remove any loose material not removed by the machine shall be conducted immediately behind the machine in an approved manner to the satisfaction of the Engineer. All milled surfaces shall be cleaned, inspected, measured, and approved before the application of the tack coat or asphaltic concrete mixture. Normal operations will require complete cleanup before the Contractor is allowed to leave the job. The Contractor will not be permitted to mill any street more than one week in advance of scheduled resurfacing. Lighted barricades will be placed around all exposed surface protrusions the same day they are exposed. Failure to observe these constraints may result in shutting down the work until they are satisfied. Surface milling will be measure for payment in square yards of surface milled regardless of the number of passes required to provide the specific section for SURFACE MILLING and in linear feet for EDGE MILLING. The contract unit prices shall be the total compensation for milling the surface, removal and disposal of the milled material, cleaning the milled area, and for all labor, equipment, and incidentals necessary to complete the work in accordance with this provision, the specifications and the attached details. These items will be bid on the basis that all milled material will be hauled and disposed of at the location designated by the Engineer for use by the City. The unit prices for SURFACE MILLING and EDGE MILLING will not be subject to renegotiation due to under -run of Contract quantities. 2.19 MATERIALS AND EQUIPMENT: The Contractor shall be free to secure the approved materials, equipment and articles from sources of his own selection. However, if the Owner finds that the work shall be delayed or adversely affected in any way because a selected source of supply cannot furnish a uniform product in sufficient quantity and at the time required and a suitable source does exist, or the product is not suitable for the work, the Owner shall have the right to require the original source of supply changed by the Contractor. The Contractor shall have no claim for extra cost or damage because of this requirement. The Contractor warrants to the Owner that all materials and equipment furnished under this Contract Agreement shall be new unless otherwise specified in the contract documents; and that same shall be of good quality and workmanship, free from faults and defects and in conformance with the contract documents. All materials and equipment not conforming to these requirements, including substitutions and not properly approved and authorized, may be considered defective, and shall be promptly repaired or replaced by the Contractor at the Contractor's sole cost upon demand of the Owner. If required by the Owner, the Contractor shall furnish evidence as to the kind and quality of materials and equipment. 2.20 WORKMANSHIP: The Contractor shall furnish the Owner with every reasonable facility for ascertaining whether or not the work performed was in accordance with the requirements and intent of the plans and specifications. Any work done (except excavation) or materials used without suitable inspection by the Owner may be ordered removed and replaced at the Contractor's expense. The Contractor shall promptly correct or replace all work rejected by the Owner as defective or as failing to conform to the contract documents whether observed before or after substantial completion and whether or not fabricated, installed or completed. The Contractor shall bear all costs of correcting such rejected work, including costs incurred for additional services necessary thereby. 2.21 REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK: All work which has been rejected or condemned shall be repaired, or if it cannot be repaired satisfactorily, it shall be removed and replaced at the Contractor's expense. Defective materials shall be immediately removed from the site of the work. Upon failure of the Contractor to repair satisfactorily or to remove and replace, if so directed, rejected, unauthorized or condemned work or materials, immediately after receiving notice to the Owner, the Owner shall, after giving written notice to the Contractor, have the authority to cause defective work to be remedied or removed and replaced, or to cause unauthorized work to be removed and to deduct the cost thereof from any monies due or to become due the Contractor. Alternatively, the Owner may, at its option, declare the Contractor in default, in which event the performance bond surety shall complete the contract. m ATTACHMENT 1 ATTACHMENT 3 ATTACHMENT 4 Slayter Creek Trail, Phase II Project Bid Tabulation Bidder Bid Amount Mitchell Enterprises $239,982.00 Jim Bowman Construction $200,750.00 Parkscpate Construction $220,802.40 JDK $191,524.66 Pavecon Ltd. $248,953.00 DCI Contracting $248,800.00 CPS Civil LLC $2081500.00 Redman Concrete $175,000.00 Shelton Miller, Inc. $230,302.00 X{OUR} HOME7.`OW 1V Council Meeting: September 25, 2012 Account Code #: 50-631-6941 Budgeted Amount: $2,100,000 Item No. 13 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution approving the purchase and installation for sports field lighting at Slayter Creek Park. SUMMARY: Last fall the City was awarded a grant from the Texas Department of Parks and Wildlife to help fund the construction of Slayter Creels Park, Phase II. Part of the project includes the installation of lighting at the two new ball fields, one multi -purpose field, and on the existing tennis courts. Musco Lighting was used when Phase I of the park was constructed in 2008. Founded in 1976, Musco Lighting is on one of the leaders in the manufacture of sports - lighting systems, from hometown Little League® fields to professional sports stadiums around the world. Staff is recommending that Musco Lighting be used on the sports fields that will be constructed with Phase II of the park. Musco will manufacture and install the requested sports field lighting for $478,000 through the Texas Local Government Purchasing Cooperative. The City's Financial Policy requires that all purchases above $50,000 must be purchased under formal competitive sealed bidding rules or as otherwise permitted by the Texas Local Government Code under Chapters 252 and 271. Chapter 271 Subchapter F of the Texas Local Government Code permits a local government to participate in a cooperative purchase program with another local government or a local cooperative organization. Goods or services purchased through a cooperative purchasing program satisfy the State law requirement to seek competitive bids. The Musco Lighting products that will be installed at Slayter Creek Park to can be purchased by the City through the Texas Local Government Purchasing Cooperative (commonly referred to as the "BuyBoard"). The TLGP Cooperative is an administrative agency created in accordance with Section 791.001 of the Texas Government Code. Its purpose is to obtain the benefits and efficiencies that can accrue to members of a cooperative, to comply with state bidding requirements, and to identify qualified vendors of commodities, goods, and services. The Cooperative also relieves the burdens of governmental purchasing by effectively using current technology and realizing economies of scale. The Cooperative analyzes and makes award recommendations for products and services that have been submitted for competitive procurement as outlined by state statute. Item No. 13 City Secretary's use only RECOMMENDATION: Staff recommends approval of the attached Resolution that authorizes the purchase of Musco sports field lighting through the Texas Local Government Purchasing Cooperative. The prior bid for ball field and parking lot construction came in high. We will not authorize the purchase and installation of the multi -purpose field lighting ($126,000) unless we can verify that we will have enough funds in the project budget to construct all of the required park elements. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING APPROVING THE PURCHASE OF SPORTS FIELD LIGHTING AT SLAYTER CREEK PARK WHEREAS, last fall the City of Anna, Texas (the "City") was awarded a grant from the Texas Department of Parks and Wildlife to help fund the construction of Slayter Creek Park, Phase II; and WHEREAS, part of the Slayter Creek Park, Phase II project includes the installation of lighting for two new ball fields, one multi -purpose field, and two existing tennis courts; and, WHEREAS, Musco Lighting is on one of the leaders in the manufacture of sports - lighting systems, from hometown Little League® fields to professional sports stadiums around the world; and, WHEREAS, Musco Lighting was used when Phase I of the park was constructed in 2008; and, WHEREAS, Musco will manufacture and install the requested sports field lighting for $478,000 through the Texas Local Government Purchasing Cooperative (commonly referred to as the "BuyBoard"; and, WHEREAS, the City's financial policy requires that all purchases above $50,000 must be purchased under formal competitive sealed bidding rules or as otherwise permitted by the Texas Local Government Code under Chapters 252 and 271; and WHEREAS, Chapter 271 Subchapter F of the Texas Local Government Code permits a local government to participatecooperative purchase program with another local government or a local cooperative organization; WHEREAS, goods or services purchased through a cooperative purchasing program satisfy the State law requirement to seek competitive bids; and, WHEREAS, The Texas Local Government Purchasing Cooperative is an administrative agency created in accordance with Section 791.001 of the Texas Government Code, whose purpose is to obtain the benefits and efficiencies that can accrue to members of a cooperative, to comply with state bidding requirements, and to identify qualified vendors of commodities, goods, and services; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: CITY OF ANNA, TEXAS RESOLUTION NO._ PAGE 1 OF 2 Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Sport Field Light Purchase The City Council hereby authorizes the City Manager to execute on its behalf a contract with Musco Lighting for the purchase of sports field lighting for Slayter Creek Park, Phase II as shown on the written quotation attached hereto as Exhibit 1, subject to the legal review and approval by the City Attorney of said contract. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 25tn Jay of September, 2012. APPROVED: Mike Crist, Mayor ATTEST: Natha Wilkison, City Secretary CITY OF ANNA, TEXAS RESOLUTION NO._ PAGE 2 OF2 A rtev9=1 , ,Texas 0-i 2 ParkiRec & Ftel�-L-i�Titing #36�-10 Buy Board Vendor # 528 Quotation Price Musco's Light Structure GreenT"' as described below, delivered to the job site and Installed per the scope of work below: Baseball i Sollball ifeids 2 and 3............................................................................ $289,OOQ.00. Adder i Soccer:................................................................................................. $1261000.00. Addor 2 Tennis:................................................................................................... $63,000,009 Dqulpment Description Light Structure GreenTM System delivered to your site in Five Easy PEecesTM • Pre•cast concrete bases • Galvanized steel poles • UL Listed remote electrical component enclosures • Pole length wire harness • Factoryaimed and assembled luminaires Also Includes: • Energy savings of more than 50% over a standard lighting system • 50% less spill and glare light than Musco's prior industry leading technology • Musco Constant 25TM product assurance and warranty program that eliminates 100% of your maintenance costs for 25 years, including labor and materials • Guaranteed constant light level of 50/30 for Baseball/Softball, 20fe for Soccer and 50fe for Tennis for 25 years, +/• 10% per IESNA RP•06.01 • One group re•lamp for Baseball / Softball and Soccer and 4 group relamps for Tennis at the end of the lamps' rated life, 5000 hours • Control Link, Control & Monitoring System for flexible control and solid management of your fighting system • Lighting Contactors sized for on site Voltage and phase Sates tax, if applicable, is not included as part of this quote. Pricing furnished !s effective for ti0 days unless othenvfse Hated and is considered confldentlal. Divulging technical or pricing information to competitive vendors w11T result Tn removal from the bfd list. © 2009, 20t 0 Musco Sports Ughting, LLC 1 SD-2565-2 Payment Terms Payment of 259/6 of the contract price is required with order. The contract balance is due upon terms to be determimed with the Musco Credit Department. Late payment will be subject to service charges of 1 1/s% per mo. MVQUU will make Query effort to coordinate shipment so that delivery corresponds with the customer's payment schedule. We will expect payment within the terms described above unless there is a written statement from Musco's corporate headquarters stating the acceptance of different terms. Delivery to the job site from the time of order, submittal approval, and confirmation of order details Including voltage and phase, pole locations is approximately 3045 days. Due to the bullt4n custom light control per luminatre, pole locations need to be confirmed prior to production. Changes to pole locations after the product is sent to production could result in additional charges. Notes Quote is based on: • Shipment of entire project together to one location • Field sizes are per attached Musco design 136118 • Structural code and wind speed = 2003 IBC, 90 MPH exposure C. • Confirmation of pole locations prior to production Scope of Work. Customer Responsibilities: 1. Complete access to the site for construction using standard 2 wheei drive rubber tire equipment. 2. Locate existing underground utilities not covered by "One Call" and irrigation systems and sprinkler heads. Musco or Subcontractor will not be responsible for repairs to unmarked utilities, 3. Survey, locate and mark Pole locations, home plates, foul lines and all field reference points per Musco supplied layout. 4. Pay for extra costs associated with foundation excavation in non-standard soils (rock, caliche, high water table, collapsing holes, etc.). Standard soils are defined as soils that can be excavated using standard earth auguring equipment. 5. Owner responsible for any power company fees and requirements. (if necessary), 6, Provide area on site for disposal of spoils from foundation excavation. 7. Provide sealed Electrical Plans. (If required) Musco Responsibilities: 1. Provide required poles, fixtures, and foundations. 2, Provide layout of pole locations and aiming diagram. 3. Provide Project Management as required. 4. Provide stamped foundation designs based on 2500psi sails. 5. Provide Payment and Performance Bonding. { If required, Not included in the quote) Subcontractor Responsibilities: Base Quote for 2 Baseball Fields Only 1. Provide equipment and materials to off load equipment at jobsite per scheduled delivery. 2. Provide storage containers for material, (inetuding ballast boxes), as necessary and waste disposal. 3. Provide adequate security to protect MLISCd delivered products from theft, vandalism or damage during the Installation. 4. Obtain any required permitting. 5. Provide materials and equipment to Install or upgrade electrical service panels as required or necessary. Existing Control Link Cabinets for Baseball and Softball Fields. 6. Provide materials and equipment to mount the Musco Supplied Surge Protection Device to the distribution panel and terminate necessary wiring. © 2009, 2010 Musco Sports Lighting, LLC 2 SD-2565v2 7. Provide dedicated breaker in distribution panel for surge protection device. 8. Provide materials and equipment to install all underground conduit, wiring, pull boxes etc. and terminate wiring as required per electrical design. 9. Confirm the existing underground utilities and irrigation systems have been located and are clearly marked so as to avoid damage from construction equipment. Repair any such damage during construction. f0. Provide materials and equipment to install (9) LSS foundations as specified on Layout. 11. Provide materials and equipment to remove (2) Pole top fitters & fixtures on the existing A2 & A3 poles. Fixtures will be re -installed on new fitters along with new fixtures for fields 2 & 3.. 12. Provide and install ground rods for lightning protection per NFPA 780 Code, NEC Section 250, and local building codes. Poles 75'or shorter should use a #2 bare copper conductor to the ground rod. Poles taller than 75' should use a #2/0 bare copper conductor. For standard clay soil, the ground rod must not be less than 5/8"x 8' long, driven vertically into the soil until point is 10' below grade. Ground rods must be installed in soil, not In the concrete backfill. Measure resistance per NEC 250.56, If greater than 25 ohms, then install 2"a ground rod. Ground conductor to be attached by exothermic fusion welding. 13. Remove spoils to owner designated location at jobsite. i4. Provide materials and equipment to assemble (76) LSG fixtures and terminate all necessary wiring. i5. Provide equipment and materials to assemble and erect (9) LSS Poles. i 6. Provide equipment and materials to install (?) Lighting Contactor Cabinet and terminate all necessary wiring. Existing Cabinets will need assessed as to what we will provide for new cabinets. 17. Provide step down transformer for 120v control circuit if not available. 18. Contractor will commission Control Link by contacting Control Link Central at (877-347-3319) and going through the following steps: 19. Check all Zones to make sure they work in both auto and manual rnode. 20. 1 hour comprehensive burn of all lights on each zone. 21. Set base line for the DAS (Diagnostic Acquisition System) 22. Keep all heavy equipment off of playing fields when possible. Repair damage to grounds which exceeds that which would be expected. Indentations caused by heavy equipment traveling over dry ground would be an example of expected damage. Ruts and sod damage caused by equipment traveling over wet grounds would be an example of damage requiring repair. 23. Provide startup and aiming as required to provide complete and operating sports lighting system. 24. Provide as built drawings on completion of installation. Adder #1: Soccer Field Provide all above items for installation of {4) new poles & (24} fixtures on the Soccer Field plus all new Electrical New Service will probably be required. Adder # 2: Tennis Courts Provide all above items for installation of {4) new poles & (8} fixtures on the Tennis Courts plus all new electrical. New Service probably tied in with the Soccer. Thank you for considering Musco for your sports -lighting needs. Please contact me with any questions. Richard Wadlow Sales Representative Musco Sports Lighting, LLC PO Box 260 2107 Stewart Road Muscatine, Iowa 52761 Phone: 214-280-6561 E-mail: Richard.Wadlow@Musco.com Fax: 800-374-6402 © 2009, 2010 Musco Sports Lighting, LLC 3 SD•2565-2 Y{OUR} I�OMETOW N Council Meeting: September 25, 2012 Account Code #: Budgeted Amount: Item No. 14 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: City Manager Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regat•ding a Resolution authorizing acquisition of a utility easement on property owned by Chan C. Chung SUMMARY: In order to prepare of the upcoming expansion and reconsh•uction of FM 455, the City of Anna is required to relocate existing water and sewer lines that will be in conflict with the project. In order to relocate these utilities, the City has had to acquire several utility easements. The attached resolution authorizes Staff to initiate the use of eminent domain to acquire a utility easement on property owned by Chan C. Chung, RECOMMENDATION: Staff recommends approval of the attached Resolution. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, FINDING THAT A PUBLIC NECESSITY EXISTS FOR ACQUISITION OF 618 SQUARE FEET OF REAL PROPERTY, MORE OR LESS, FOR A PERMANENT WATERLINE AND WASTEWATER LINE EASEMENT; AUTHORIZING THE CITY MANAGER, STAFF, CONTRACTORS, AND THE CITY'S ATTORNEYS TO ACQUIRE SAID PROPERTY BY ANY LAWFUL MEANS, INCLUDING BUT NOT LIMITED TO NEGOTIATIONS, AND, IF NECESSARY, PROCEEDINGS IN EMINENT DOMAIN, PROVIDING AN WHEREAS, the Texas Department of Transportation is constructing improvements to F.M. 455 in the City of Anna, Texas, requiring the City to relocate, reconstruct, replace, repair and/or install waterlines and wastewater lines to meet the public need to provide water and wastewater system improvements to benefit the City of Anna, its citizens and the general health, safety and welfare; and WHEREAS, it is necessary to acquire a certain waterline and wastewater line easement not now held by the City of Anna for such water/wastewater utility system relocation and improvements; and WHEREAS, it is necessary to delegate authority to pursue negotiations for the acquisition of said easement and/or to pursue the easement under power of eminent domain; and WHEREAS, the City Council of the City of Anna, Texas ("City Council"), after careful consideration, finds that a public necessity exists for acquisition of a waterline and wastewater line easement comprising 618 square feet of real property, more or less, which is more particularly described in Section 2 of this resolution, for the purposes of relocation, installation, maintenance, replacement, and/or repair of waterlines and wastewater lines and benefiting the public health, safety and welfare; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Incorporation of Recitals; Purpose 1.01 The above -stated recitals are incorporated her as if set forth in full for all purposes. 1.02 This resolution is intended to comply in all respects with Texas Government Code § 2206.001, et seq., Texas Local Government Code § 251.002 and Texas CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 3 Property Code § 21.001 et seq., to the extent the provisions of such statutes are applicable. 1.03 The Council, by this resolution, intends, if necessary, to exercise the City's powers of eminent domain under Texas Local Government Code § 251.001 and any and all other applicable statutes. Section 2. Property to be Acquired 2.01 The necessary permanent waterline and wastewater easement sought to be acquired will affect a portion of a tract, said portion totaling approximately 618 square feet of real property (the "Property"), held by Chan C. Chung and/or others. Said approximate 618 square feet of real property is generally aligned and described in Exhibit A, attached to this resolution and incorporated herein by reference as if fully set forth for all purposes. 2.02 Notwithstanding any notations to the contrary in said Exhibit A, the City's intent is to acquire an easement for both water and wastewater lines, and all necessary and appropriate appurtenances thereto. Section 3. Finding of Public Necessity and Authorization to Take Action 3.01 The Council finds a public necessity for the public welfare and convenience to acquire the easement identified in Section 2, above, for the purpose of constructing, laying, maintaining, repairing and/or replacing waterlines and/or wastewater lines. The Council authorizes the City Manager, City staff and/or City consultants or contractors, and, Wolfe, Tidwell & McCoy, LLP, attorneys, to acquire the needed Property by any lawful means including but not limited to negotiations with landowners and, if necessary, proceedings in eminent domain. 3.02 The Council by this resolution directs the City Manager, his staff, and Wolfe, Tidwell &McCoy, LLP, attorneys —as necessary and in the appropriate sequence —to have the Property appraised by a certified appraiser, to send the landowner(s) a copy of the landowner's bill of rights statement, to enter into good -faith negotiations with the landowner(s), to make a bona -fide offer and make any necessary final monetary offers in an attempt to acquire the permanent waterline and wastewater line easement on and under the affected Property consistent with the appraisal(s), when appropriate, and to convey the City's desire to acquire an easement through the Property in an efficient manner, and, if necessary, to institute proceedings in eminent domain and take all necessary actions in such proceedings to condemn and acquire the Property. The Council hereby authorizes and ratifies any such actions taken thus far, and hereby further CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 2 OF 3 asserts its full authority, to the greatest extent provided by law, to acquire the easement identified in Section 2. Section 4. Effective Date. This resolution shall take effect immediately upon its passage. PASSED by the City Council of Anna, Texas, this day of 2012. ATTESTED: APPROVED: City Secretary, Natha Wilkinson Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 3 OF 3 EXHIBIT "A" County: Collin Page 1 of 3 Highway: FM 455 April 102 2012 R.O.W. CSJ: 0816-04-046 Description for Waterline and Wastewater line Easement BEING 618 square feet of land, more or less, in the Granderson Stark Survey, Abstract Number 7981 City of Anna, Collin County, Texas, and being part of that certain called 0.2718 acre tract of land described in a deed to Chan C. Chung (Chung tract), as recorded in Volume 5965, Page 2924 of the Official Public Records of Collin County Texas; said 618 square feet of land being more particularly described by the metes and bounds as follows COMMENCING at a 5/8-inch iron rod with ahuninum cap stamped "TxDOT" found in the East line of said Chung tract, same being the Southeast corner of that certain called 0.058 acre tract of land described in a Notice of Lis Pendens to the State of Texas (State tract), as recorded in Document Number 20110811000848430 of the Official Public Records of Collin County, Texas; same also being in the existing West Right-of^way line of State Highway 5, as recorded in Volume 297, Page 585 of the Official Public Records of Collin County Texas; THENCE North 42° OS' 29" West with the common line between said Chung tract and said State pact, a distance of 48.50 feet to a 5/8-inch iron rod with plastic cap stamped "Dannenbaum Engineering" set for the PLACE OF BEGINNING, said PLACE OF BEGINNING being the beginning of a curve to the left whose long chord bears North 88° 45' 53" West, 48.69 feet; 1} THENCE Northwesterly, crossing said Chung tract with the South line of the herein described easement, curving to the left, having a radius of 4925.00 feet, through a central angle of 00° 33' 59" for an arc distance of 48.69 feet to a 5/8-inch iron rod with plastic cap stamped "Darmenbaum Engineering" set in the West line of said Chung tract, same being the East line of that certain called 0.275 acre tract of land described in a deed to Charles K. Green (Green tract), as recorded in Volume 5858, Page 3868 of the Official Public Records of Collin County Texas ; 2) THENCE North 040 08' 51" East with the common Line between said Chung tract and said Green tract, a distance of 15.02 feet io a 5/8-inch iron rod with aluminum cap stamped "TxDOT" found for the Southwest corner of the aforesaid State tract, said corner being the beginning of a curve to the right whose long chord bears South 88° 50' 33" East, 33.73 feet; 3) THENCE Southeasterly with the common Line between said Chung tract and said State tract, curving to the right, having a radius of 4940.00 feet, through a central angle of 00° 23' 28", for an arc distance of 33.73 feet to a 5/84nch iron rod with aluminum cap stamped "TxDOT" found for an angle point; County: Highway: R.O.W. MS. Collin FM 455 0816-04-046 EXHIBIT "A" Continued Page 2 of 3 Ape it 10, 2012 4) THENCE South 42° OS' 29" East with the common line between said Chung tract and said State tract, a distance of 20.69 feet to the PLACE OF BEGINNING and containing 618 square feet (0.014 Acres) of land, more or less. Notes: Survey plat to accompany this Iegai description. Basis of Bearings is a line between CORS Station TXAR (North 6,962,112.4020 East 2,411,057.5050 Grid Coordinates) and TXDE (North 6,978,860.0908 East 2,529,861.8823 Grid Coordinates), North American Datum 1983 (1993), which is North 81 degrees 58 minutes 33 seconds East — Texas State Plane, North Central Zone (4202). All coordinates shown are surface unless otherwise noted and may be converted to grid by dividing by the TxDOT combined scale factor of 1.000152710. I, Michael Dan Davis, a Registered Professional Land Surveyor in the State of Texas, Hereby certify that the land description and plat represent an actual survey made on the ground under my supervision. Michael llan llavls Registered Professional Land Surveyor No. 4838 Datmenbaum Engineering Company Fort Worth — LLC T.B.P.L.S. Registration Number 101IM02 6421 Camp Bowie Boulevard, Suite 400, Fort Worth, Texas 76116ffi Office: 817-76M883, Fax: 817-377-2956 ofiT �EF Foss MICHAEL DAN DAVIS 4838 ....p ;:... �ji�•FEssso`�' SUR�� THE7fIF�ST NATIONAL BAt�jj�( 9ij VAN ALSTYNE �EXI•STING F /' QL.4949, PG-27;-j ----- 1 0 W Y l o Y/� O.P.R.C.C.T. +_ 1 7 �. ,.. OF to f,\ JOSEPH FINLEY DOCUMENT NUMBER 95-0087243 O.P.R.C.C.T. PATRICIA LEE ROPER AND AMON BURL ROPER VOL. 2094, PG. 741 O,P,R.C.C.T. MICHAEL JAKE HENDRICKS, TRUSTEE EVELYN McLA1N HENDRICKS TRUST DOCUMENT NUMBER 94-0078357 O.P.R.C.C.T. EXH/BIT 'A' TXDCT �^ HEN RYA PR) f jSURY, IT J I I C P ,Ad s. - WASTEWATER" EASEMENT "0 0 -11 I AC sTXD0T-0TXDOT r CAP CAP (((••• `SEE E ENI IN DETAIL L� �—�' N-7178505.266 1' PIPS CHARLES K. GREEN VOL.5856, PG, 386Q O.P.R,c,C.T. CHAN C. CHUNG VOL.53652 PG, 2924 O.P,R.C,C.T, DAMES D. HOLLAND et fix VOL. 558, PG. 632 O-P.R.C,C.T GRANDERS4N STARK SURVEY ABSTRACT No.798 Notes: LegoldescrlpJ/on to occompany ihts survey sketch. BASIS OF BEARINGS 1S A LINE BETWEEN CORS STATION TXAR IN 6,962,112.4020, E 2.41l, 05T.5050 GRIDI AND CORS STATION TXDA fN 6, 978.860.0906,E 2, 529, 861.8823 GRID). N. A, D. 83, WHICH IS NORTH 8r 58' 33EAST- TEXAS PLANE // COORDINATE SYSTEM, NORTH CENTRAL ZONE (4202), N ALL DISTANCES AND COORDINATES SHOWN ARE SURFACE AND AfAY 8E CONVERTED TO GRID BY DNlDlIIG BY TXDOT CONVERSION FACTOR i.000152T10. Pogo 3 of 3 LEGEND � •Monument found 'as Holed' Q • %"iron rod w/ plostJc cop stomped 'Donnenboum Englneering' POC ° Place Of Commencing POB • Place Of Beginning IP • Properly Line SL ° Survey Line H • Fee Hook O. R. R. C. C. T, • Official Public Records, Collin County, Texas STATE oFTEXA3 C.tl10f1081100084g130EO DETAIL N.T.S. 7Xb0T .c.AP C2 PROP EASEMENT LINE MICHAEL DAN DAVIS 4838 Opt.sst��PO� SUPt 01 CH = N88°45'S3"W CH = S88°50'33"E CH = 48.69' CH = 33.73' R = 4925.00' R = 4940.00' L = 48.69' L = 33.73' A = 00°33'59" LT. A = 00023'28" RT. i (}/ 0 50 100 150 ��`f)�, SCALE iN fEET In the GRANDERSON STARK SURVEY Abstract No. 798, Collin County, Texas Owner: Chan G. Chung 618 Square feet or 0.014 acres ENGINEERING CO. - FT. WORTH, LLC T.t3.P.L.S. REG. NUMBER 101188-02 6421 CAMP BOWIE BOULEVARD, SUITE 400 FORT WORTH, TEXAS 76116 (817)763-8883 X{OUR,} IiOMETOW N Council Meeting: September 25, 2012 Account Code #: Budgeted Amount, Item No. 15 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Cit�ger Exhibits: X Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action regarding a Resolution authorizing acquisition of a utility easement on property owned by Charles K. Green SUMMARY: In order to prepare of the upcoming expansion and reconstruction of FM 455, the City of Anna is required to relocate existing water and sewer lines that will be in conflict with the project. In order to relocate these utilities, the City has had to acquire several utility easements. The attached resolution authorizes Staff to initiate the use of eminent domain to acquire a utility easement on property owned by Charles K. Green, RECOMMENDATION: Staff recommends approval of the attached Resolution. CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, FINDING THAT A PUBLIC NECESSITY EXISTS FOR ACQUISITION OF 618 SQUARE FEET OF REAL PROPERTY, MORE OR LESS, FOR A PERMANENT WATERLINE AND WASTEWATER LINE EASEMENT; AUTHORIZING THE CITY MANAGER, STAFF, CONTRACTORS, AND THE CITY'S ATTORNEYS TO ACQUIRE SAID PROPERTY BY ANY LAWFUL MEANS, INCLUDING BUT NOT LIMITED TO NEGOTIATIONS, AND, IF NECESSARY, PROCEEDINGS IN EMINENT DOMAIN; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Texas Department of Transportation is constructing improvements to F.M. 455 in the City of Anna, Texas, requiring the City to relocate, reconstruct, replace, repair and/or install waterlines and wastewater lines to meet the public need to provide water and wastewater system improvements to benefit the City of Anna, its citizens and the general health, safety and welfare; and WHEREAS, it is necessary to acquire a certain waterline and wastewater line easement not now held by the City of Anna for such water/wastewater utility system relocation and improvements; and WHEREAS, it is necessary to delegate authority to pursue negotiations for the acquisition of said easement and/or to pursue the easement under power of eminent domain; and WHEREAS, the City Council of the City of Anna, Texas ("City Council"), after careful consideration, finds that a public necessity exists for acquisition of a waterline and wastewater line easement comprising 618 square feet of real property, more or less, which is more particularly described in Section 2 of this resolution, for the purposes of relocation, installation, maintenance, replacement, and/or repair of waterlines and wastewater lines and benefiting the public health, safety and welfare; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Incorporation of Recitals; Purpose 1.01 The above -stated recitals are incorporated her as if set forth in full for all purposes. 1.02 This resolution is intended to comply in all respects with Texas Government Code § 2206.001, et seq., Texas Local Government Code § 251.002 and Texas CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 3 Property Code § 21.001 et seq., to the extent the provisions of such statutes are applicable. 1.03 The Council, by this resolution, intends, if necessary, to exercise the City's powers of eminent domain under Texas Local Government Code § 251.001 and anI and all other applicable statutes. Section 2. Property to be Acquired 2.01 The necessary permanent waterline and wastewater easement sought to be acquired will affect a portion of a tract, said portion totaling approximately 618 square feet of real property (the "Property"), held by Chan C. Chung and/or others. Said approximate 618 square feet of real property is generally aligned and described in Exhibit A, attached to this resolution and incorporated herein by reference as if fully set forth for all purposes. 2.02 Notwithstanding any notations to the contrary in said Exhibit A, the City's intent is to acquire an easement for both water and wastewater lines, and all necessary and appropriate appurtenances thereto. Section 3. Finding of Public Necessity and Authorization to Take Action 3.01 The Council finds a public necessity for the public welfare and convenience to acquire the easement identified in Section 2, above, for the purpose of constructing, laying, maintaining, repairing and/or replacing waterlines and/or wastewater lines. The Council authorizes the City Manager, City staff and/or City consultants or contractors, and, Wolfe, Tidwell & McCoy, LLP, attorneys, to acquire the needed Property by any lawful means including but not limited to negotiations with landowners and, if necessary, proceedings in eminent domain. 3.02 The Council by this resolution directs the City Manager, his staff, and Wolfe, Tidwell &McCoy, LLP, attorneys —as necessary and in the appropriate sequence —to have the Property appraised by a certified appraiser, to send the landowner(s) a copy of the landowner's bill of rights statement, to enter into good -faith negotiations with the landowner(s), to make a bona -fide offer and make any necessary final monetary offers in an attempt to acquire the permanent waterline and wastewater line easement on and under the affected Property consistent with the appraisal(s), when appropriate, and to convey the City's desire to acquire an easement through the Property in an efficient manner, and, if necessary, to institute proceedings in eminent domain and take all necessary actions in such proceedings to condemn and acquire the Property. The Council hereby authorizes and ratifies any such actions taken thus far, and hereby further CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 2 OF 3 asserts its full authority, to the greatest extent provided by law, to acquire the easement identified in Section 2. Section 4. Effective Date. This resolution shall take effect immediately upon its passage. PASSED by the City Council of Anna, Texas, this day of 2012. ATTESTED: APPROVED: City Secretary, Natha Wilkinson Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 3 OF 3 EXHIBIT "A" County: Collin Page 1 of 3 Highway: FM 455 April 105 2012 R.O.W. CSJ: 0816-04-046 Description for Waterline and Wastewater line Easement BEING 61$ square feet of land, more or less, in the Granderson Stark Survey, Abstract Number 7983 City of Alma, Collin County, Texas, and being part of that certain called 0.2718 acre tract of land described in a deed to Chan C. Chung (Chung tract), as recorded in Volume 5965, Page 2924 of the Official Public Records of Collin County Texas; said 618 square feet of land being more particularly described by the metes and bounds as follows COMMENCING at a 5/8-inch iron rod with aluminum cap stamped "TxDOT" found in the East line of said Chung tract, salve being the Southeast corner of that certain called 0.058 acre tract of land described in a Notice of Lis Pendens to the State of Texas (State tract), as recorded in Document Number 20110811000848430 of the Official Public Records of Collin County, Texas, same also being in the existing West Right-of�way line of State Highway 5, as recorded in Volume 297, Page 585 of the Official Public Records of Collin County Texas; THENCE North 42° OS' 29" West with the common line between said Chung tract and said State tract, a distance of 48.50 feet to a 5/&mch iron rod with plastic cap stamped "Dannenbaum Engineering" set for the PLACE OF BEGINNING, said PLACE OF BEGINNING being the beginning of a curve to the left whose long chord bears North 88° 45' 53" West, 48.69 feet; 1} THENCE Northwesterly, crossing said Chung tract with the South line of the herein described easement, curving to the left, having a radius of 4925.00 feet, through a central angle of 00° 33' 59" for an arc distance of 48.69 feet to a 5/8-inch iron rod with plastic cap stamped "Damienbaunr Engineering" set in the West line of said Chung tract, same being the East line of that certain called 0.275 acre tract of land described in a deed to Charles K. Green (Green tract), as recorded in Volume 5858, Page 3868 of the Official Public Records of Collin County Texas ; 2) TIIENCE North 04° 08' 51" East with the common line between said Chung Tract and said Green tract, a distance of 15.02 feet to a S/8-inch iron rod with aluminum cap stamped "TxDOT" found for the Southwest corner of the aforesaid State tract, said comer being the beginning of a curve to the right whose long chord bears South 881 50' 33" East, 33.73 feet; 3) THENCE Southeasterly with the common Iine between said Chung tract and said State tract, curving to the right, Laving a radius of 4940.00 feet, through a central angle of 00° 23' 28", for an arc distance of 33.73 feet to a 5/84nch iron rod with aluminum cap stamped "TxDOT" found for an angle point; County: Highway: R.O.W. CSJ: Collin FM 455 0816-04-046 EXHIBIT "A" Continued Page 2 of 3 April 10, 2012 4} THENCE South 42° OS' 29" East with the common line between said Chung tract and said State tract, a distance of 20.69 feet to the PLACE OF BEGINNING and containing 618 square feet (0.014 Acres) of land, more or less. Notes: Survey plat to accompany this legal description. Basis of Bearings is a line between CORS Station TXAR (North 6,962,112.4020 East 2,411,057.5050 Grid Coordinates) and TXDE (North 6,978,860.0908 East 2,529,861.8823 Grid Coordinates), North American Datum 1983 (1993), which is North 81 degrees 58 minutes 33 seconds East — Texas State Plane, North Central Zone (4202). All coordinates shown are surface unless otherwise noted and may be converted to grid by dividing by the TxDOT combined scale factor of 1.000152710. I, Michael Dan Davis, a Registered Professional Land Surveyor in the State of Texas, Hereby certify that the land description and plat represent an actual survey made on the ground under my supervision. Michael llan llavrs Registered Professional Land Surveyor No. 4838 Darmenbaum Engineering Company Fort Worth — LLC T.B.P.L.S. Registration Number 101188-02 5421 Camp Bowie Boulevard, Suite 400, Fort Worth , Texas 76116 Office: 817-763-8883, Fax4 817-377-2956 �'r MICHAEL DAN DAVIS 90 4838 SURD'V ....P ;:... �jioFEs s 5� ST NATIONAL VAN ALSTYNE I =7 STATE OFT� --�V.971PP.12� N FM-455._�._- TXOOT CAP cn T i HiENRY�PR� 1 y /S U R1(17 I 1 \ f ca ! � i i�° L = f�r T•xxDOT � ,- ; riL ,CST CAPI s ii EASEMENT ""° -� OR "" 10 0141 AC 1TXDOT-�24UDOT t CAP CAP •••---(((••• 1 STATE OF TEXAS .tl10ti0811Coop1gt10� \" �-_ '-- �. `,SEE )P OF'ASEM1{I�ENT..FIN DETAIL CAP N=7176505,265 1 E=25�3759.151 ' 1 C J J C�CI;:f II7EE� Pb ND C I JOSEPH FINLEY DOCUMENT NUMBER 95-0087243 O.P.R.C.C.T, PATRICIA LEE ROPER AND AMON BURL ROPER VOL. 2094, PG. 741 O,P.R.C.C.T. MICHAEL JAKE HENDRICI<S, TRUSTEE EVELYN McLAiN HENQRICKS TRUST DOCUMENT NUMBER 944078357 O.P.R.C.C.T, CHARLES K. GREEN VOL.5858, PG. 3868 O.P.R,C.C.T. GRAN C. CHUNG VOL.5965, PG, 2924 O.P.R.C,C.T. JAMES D. HOLLAND et ux VOL. 558, PG. 632 O.P.R.C.C.T GRANDERSON STARK SURVEY ABSTRACT No.798 Nolesc Legol descrlpllon to occompony this survey ske/cA. BASIS OF BEARINGS !SALINE BETWEEN COBS STATION TXAR (N 6.962,112,4020,E 2.411,05T,5050 GRIDIAND COBS STATION TXDA IN 6,978,860.0906, E 2,529,861.8B23 GRlDI, N,A, D, 83, WHICH IS NORTH 8r 58' 33- EAST- TEXAS PLANE / COORDINATE SYSTEM, NORTH CENTRAL ZONE (4202), N ALL DISTANCES AND COORDINATES SHOWN ARE SURFACE AND MAY 8E CONVERTED TO GRID BY DNIDIIIG BY TXIXIT CONVERSION FACTOR 1.000I527f0. Poge 3 of 3 LEGEND � -Monument found 'as noted' Q - % "Iron rfxl w/ pioslic cop stomped onnenboum Englneering' POC " Place Of Commencing POS " Place Of Beginning /f • Property LIM SL ° Survey Una H - Fee Hook O. R. R. C. C. T. ° Offlcla! Public Records, Collin County, Texas 'D 1 DETAIL N.T.S. EXISTING RIGf- TXOOT OF WAY LINE CAP C2 MOT PROP EASEMENT LINE tp RIICHAEL DAN DAVIS 4838 c, r�Ey C1 C2 CH = N88°45'S3"W CH = S88°50'33"E CH = 48.69' CH = 33.73' R = 4925.00' R = 4940.00' L = 48.69' L = 33.73' A = 00°33'59" LT. A = 00"2T28" RT. ✓ ft/ 0 50 100 J 50 �\ �t}`t SCALE IN FEET Water and Wastewater Easement In the GRANDERSON STARK SURVEY Abstract No. 798, Collin County Owner: Chan C. Chung , Texas 618 Square feet or 0,014 acres ENGINEERING CO. - FT. WORTH, LLC T.B.P. L.S. REG. NUMBER 101188-02 6421 CAMP 80W1E BOULEVARD, SUITE 400 FORT WORTH, TEXAS 76116 (817)763-8883 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, ESTABLISHING WHAT CATEGORY WITHIN THE ANNA ZONING ORDINANCE THAT A PRIVATE EVENT/MEETING HALL SHOULD BE LOCATED, REPEALING ALL RESOLUTIONS IN CONFLICT; PROVING A SERVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, from time to time a land use will be brought forward that is not addressed within the existing use charts that the City has adopted; and WHEREAS, the City Council needs to make a determination of where a use is appropriate; and WHERAS, after appropriate aspects of a use such as transportation requirements, type of product, anticipated employment, the amount of noise, odor, fumes, toxic materials and vibration likely to be generated and the general requirements for public utilities such as water and sanitary sewer have been analyzed; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT; SECTION 1. That A Private Event/Meeting Ha11 be defined as follows: PRIVATE EVENT/MEETING HALL: A privately owned building (excluding churches) or portion of such building, regularly used or leased as a location for a variety of privately sponsored events such as receptions, meetings, classes, reunions, parties, tournaments, fund raisers, exhibitions, and other similar events. SECTION 2. That uses classified as a "Private Event/Meeting Hall" be appropriate in the "C1" and more intense commercial districts by right and if alcohol is served a Specific Use Permit would be required in "C1" and allowed by right in more intense districts. SECTION 3. Should any part of this Resolution be held to be invalid for any reason, the remainder shall not be affected thereby, and such remaining portions are hereby declared to be severable. SECTION 4. This Resolution shall take effect immediately from and after its passage and it is so duly resolved. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 25tn day of September, 2012. APPROVED: ATTEST: Mike Crist, Mayor City Secretary r� Council Meeting: September 25, 2012 Account Code #: N/A Budgeted Amount: N/A Item No.16 City Secretary's use only City of Anna City Council Agenda an Report Staff Contact: Maurice Schwanke Date Prepared: 09/19/12 Exhibits: ■Yes ❑ No AGENDA SUBJECT: City Council to consider recommendations on the determination as to the appropriate classification for a "Private Event/Meeting Hall" business. SUMMARY: Occasionally, a land use will be brought forward that is not addressed within the existing use charts that the City has adopted. To make a determination of where a use is appropriate the City looks at various aspects of a use such as transportation requirements, type of product, anticipated employment, the amount of noise, odor, fumes, toxic materials and vibration likely to be generated and the general requirements for public utilities such as water and sanitary sewer. A use that has been proposed is for a facility for renting meeting rooms/banquets/wedding receptions and the like. At the facility all food will be catered with no permanent kitchen facilities provided. In addition, no alcohol will be sold. We are calling the facility a "Private Event/Meeting Hall". Additionally the definition would be as follows: PRIVATE EVENT/MEETING HALL: A privately owned building (excluding churches) or portion of such building, regularly used or leased as a location for a variety of privately sponsored events such as receptions, meetings, classes, reunions, parties, tournaments, fund raisers, exhibitions, and other similar events. As such the staff is recommending that uses classified as a "Private Community Room Facility" would be appropriate in the "C1" and more intense commercial districts by right and if alcohol is served a Specific Use Permit would be required in "Cl" and allowed by right in more intense districts. A parking ratio of 5 spaces per 1000 square feet for meeting, dancing, social events is already identified in the required parking tables. According to Section 46 of the zoning ordinance (Classification of New and Unlisted Uses) the City Council shall by resolution approve or make such determination concerning the classification of such Use as is determined appropriate, based upon its finding after recommendation from the Planning and Zoning Commission. Item No.16 City Secretary's use only PLANNING AND ZONING COMMISSION ACTION: The Planning and Zoning Commission recommended approval unanimously at their meeting September 10, 2012 following the above staff recommendation RECOMMENDED ACTION: approve a Resolution adopting use classification for "Private Event/Meeting Hall." Council Meeting: September 25I 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 17 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Clayton Fulton Date Prepared: 9/19/2012 Exhibits: QYes ❑No AGENDA SUBJECT: Consider/Discuss/Action regarding Resolution casting votes for the TMLIEBP Board of Trustees election. SUMMARY: The Texas Municipal League Intergovernmental Employee Benefits Pool (providing health, dental, vision, and life insurance) currently has the region 13 seat up for re- election on their Board of Trustees. Each member of the Pool is entitled to vote for Board of Trustee members. The ballot is attached as an exhibit to this report. The candidates on the ballot will serve a three year term on the TMLIEBP Board of Trustees. One of the two candidates for the region 13 seat included a letter for your consideration. The letter is also attached as an exhibit. RECOMMENTDATION: That the City Council provide instruction to staff on how to cast the City's vote for the region 13 representative. Term of Office October 1, 201Z -September 30, 2015 Please vote for one candidate. Gayle Sims ^' Human Resources, City of Waxahachie Ms. Sims currently serves as the Human Resources Director for the City of Waxahachie. She has a Bachelor of Science from the University of Kansas and a Master of Management from Dallas Baptist University, Ms. Sims is a Member of the Cedar Hill Education Foundation Board and is on the Cedar Hill ISD Strategic Planning Committee, Ms. Sims has served as the TML Intergovernmental Employee Benefits Pool Region 13 Board of Trustee since 2006. Curtis Snow ^' City Manager, City of Kaufman Mr. Snow currently serves as the City Manager for the City of Kaufman. Mr. Snow graduated from the Kansas University, Mr. Snow has continuously served in various capacities for TCMA, Rotary, United Way, Lions and various Chambers of Commerce. I certify that this ballot is cast in accordance with official action taken at a duly called meeting on 2012. Signature Title Entity Mail ballot in the envelope provided to be received by September 26, 2012 to Catherine Brown Fryer Bickerstaff Heath Delgado Acosta LLP 3711 S. MoPac Expressway, Building One, Suite 300, Austin, Texas 78746 August 9, 2012 Mr. Phillip Sanders City Manager P.O. Box 776 Ana, Texas 75409-0776 Dear Mr. Sanders: You soon will be receiving the Texas Municipal League Intergovernmental Employee Benefit Pool (TMLIEBP) Trustee voting form. I am writing to thank you for trusting the Pool with your health care needs and to ask for your vote to continue on the Board representing Region 13. I am dedicated to serving the healthcare needs of Region 13 cities. I have over 25 years handling employee benefits to include bidding and reviewing of health and dental insurance and fully understand the impact of today's economy and the challenges confronting the members I serve. Now more than ever, it is increasingly important that TMLIEBP continues to focus on management of healthcare costs to provide competitive benefits to municipalities and other governmental entities in Texas. As a result, I make it a priority to closely review administrative costs that has guided my commitment to ensuring that health and dental coverage be as cost effective as possible for Region 13 cities. This was a determining factor for me to vote to approve a return of equity to lower rates for employees and cities. Additionally, each year I carefully examine the benefits the Pool is proposing to offer to ensure we are providing services that encourage healthy lifestyles and managed care strategies that remain affordable for employees. I am confident that my continued service on the Board will make a difference for Region 13 cities and yowl• employees to keep the cost of coverage low and benefits sustained that help to 1 prove the health of those she represents. krjrow 311 rely, LL �-Iuman sources Director TMLIEBP Region 13 Trustee 401 S. Rogers * P.O. Iiox 757 *Waxahachie, Texas 75168-0757 * (972) 937-7330 * (972) 937-5518 I+ax Council Meeting: September 25, 2012 Account Code # Budgeted Amount: N/A Item No. 18 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Clayton Fulton Date Prepared: 9/19/2012 Exhibits: QYes ❑No AGENDA SUBJECT: Consider/Discuss/Action regarding Resolution casting votes for the TMLIRP Board of Trustees election. SUMMARY: The Texas Municipal League Intergovernmental Risk Pool (providing Workers' Compensation, Property, and Liability coverage) currently has places 11-14 up for election on their Board of Trustees. Each member of the Pool is entitled to vote for Board of Trustee members. The ballots are attached as an exhibit to this report. The candidates on the ballot have been nominated to serve a six year term on the TMLIRP Board of Trustees. One candidate for place 11 included a letter for your consideration. The letter is also attached as an exhibit. RECOMMENTDATION: That the City Council provide instruction to staff on how to cast the City's vote for places 11-14. PLACE 11 ❑ Bill Agan. Mayor of Richland Hills (Region 8). Mr. Agan was elected Mayor in May, 2012, for a term of two years. He has served as a city councilmelnber from 1986 to 1987. He has served on the City's Planning and Zoning Commission, and has served on the City's Charter Review Commission in 1986 and from 2011 to the present. Mr. Agan has owned an auto repair business for 40 years, and has been involved in an insurance business for two years and a real estate business for six years. ❑ Greg Ingham (Incumbent). City Manager, City of Plainview (Region 3) since 2004. He has previously served as City Manager in Levelland and Littlefield, Texas. Mr. Ingham has served in local government since 1975 and is active in numerous statewide and regional organizations. He has an MPA and is a Certified Public Manager. Mr. Ingham has been a board member of the TML Intergovernmental Risk Pool since 1989. He has served as Chair and Vice -Chair of the Board, and has served as Chair of the Board's Finance Committee, ❑ Kavon Novak. Alderman, City of Caldwell (Region 10) since 2011. He is a 1991 graduate of Texas A&M University with a Bachelor's Degree in Marketing. He has been a business owner for 14 years in the financial industry and is currently an Investment Consultant with LPL Commerce since 2009. Mr. Novak has been a member of the Caldwell Men's Lions Club for 9 years and is currently the Treasurer. He and his wife of 16 years, Lori, have 4 children. They are members of First Baptist Church in Caldwell and are active in 4-H Shooting Sports and Soccer. ❑ Troy Stegemoeller. Mayor Pro Tern, City of Idalou (Region 3). Mr. Stegemoeller has served on the City Council since 2008. He has a B.S. in Agriculture Economics from Texas Tech University and is a graduate of Louisiana State University Graduate Banking School. He has been in banking for 32 years, and currently serves as the President of Vista Bank in Idalou. He has served on an advisory committee to Congressman Randy Neugebauer, and has served as finance chair of the Idalou Methodist Church and Treasurer of the local Salvation Army. WRITE IN CANDIDATE: Page 2 of 6 PLACE 12 ❑ Larry Gilley (Incumbent). City Manager, City of Abilene (Region 6) since June of 2002. He previously served as City Manager for San Marcos (1988 — 2002), Assistant City Manager for San Marcos (1987 — 1988), City Manager for Panhandle (1977 — 1987), and City Manager for Bovina (1976 — 1977). Mr. Gilley has been a Board member of the TML Intergovernmental Risk Pool since 2007, and currently serves as Chair of the Board's Underwriting and Claims Committee. He has an MPA from Southwest Texas University, and a BA from Texas Tech University. ❑ Pete Gonzalez. Deputy City Manager and Chief Financial Officer of the City of Brownsville (Region 12) since June of 2008. He previously served as Director of Finance for Brownsville from 1978 to 2008. He serves as a Board member and Finance Officer for the United Brownsville Corporation. He has a BBA degree in Accounting from Texas A&I University in Kingsville and is a certified government financial manager. Under his leadership, the City of Brownsville has been awarded the Certificate of Achievement for Excellence in Financial Reporting for the past 34 consecutive years. WRITE IN CANDIDATE: Page 3 of 6 PLACE 13 ❑ Byron Black (Incumbent). Board Chair, Central Appraisal District of Johnson County (Region 8) and member of the Area Metro Ambulance Authority Board. He served as Mayor of Burleson from 1998-2004, previously serving as mayor pro tem and as a Councilmember. He was a member of the Burleson Independent School District Board for 12 years, 9 as President, and served as president of TASB. Mr. Black has served as a Board member of the TML Intergovernmental Risk Pool since 2000, and presently serves as Vice -Chair. ❑ Gary L. Kent. Councilmember for the City of Copperas Cove (Region 9). Mr. Kent has been a resident of Copperas Cove for over fourteen years. He and his wife have three children and two grandchildren. He served 24 years with the U.S. Army, including three combat tours, and retired as a I" sergeant. He currently serves as police chief for the City of Nolanville and has more than 17 years of law enforcement experience. He is an active member of many corrrrnunsty groups, including VFW Post #8577. ❑ Keith Olson. Councilmember, City of Huntsville (Region 14) since 2010, and serves as Chair of the City's Finance Committee. Mr. Olson was born in Houston in 1973, and grew up in Huffman, Texas. He graduated fiom the University of Houston's Police Academy in 1994. Councilmember Olson sits on various local and regional boards pertaining to private finance. He is currently the owner and operator of Olson's Fine Jewelry, with interests in diamonds and specialty watches. WRITE IN CANDIDATE: Page 4 of 6 PLACE 14 Li Cynthia Klit. Risk Manager for the City of Bryan (Region 10) since 1984. Ms. Kirk directs the City's workers" compensation, property and casualty coverage, claims administration, and safety/loss control functions. She is past president and currently serves on the Board of Directors of the Texas Chapter of the Public Risk Management Association and of the State and Local Government Benefits Association. She has served on the Board of Directors for the Surplus Lines Stamping Office of Texas and on various committees for the National Public Risk Management Association. ❑ Pat Norriss (Incumbent). Nortex Regional Plarming Commission (Region 5). Ms. Norriss served on the Burkburnett City Council for 22 years, including 16 years as mayor. She serves as a board member of the National Association of Regional Councils and has served as president of the Texas Association of Regional Councils of Government. She is also a Board member of Wichita Wilbarger 911 District and Nortex 911 Communication District. Ms. Norriss has served as a Board member of the TML Intergovernmental Risk Pool since 1995, and served as chair of the Board from 2004 - 2006. ❑ Michael S. Nyren. Risk Manager for Capital Metropolitan Transportation Authority in Austin (Region 10) for 17 years. He has earned the designation of Associate in Risk Management and Associate in Risk Management for Public Entities and he serves on the Board of the Risk and Insurance Management Society, Central Texas Chapter. Mr. Nyren has a degree in Government and recently completed the Certified Public Manager Program at Texas State. He also has 30 years of experience in insurance, welhiess, safety, security, and risk management. WRITE IN CANDIDATE: Page 5 of 6 Certificate I certify that the vote cast above has been cast in accordance with the will of the majority of the governing body of the public entity named below. Witness by hand, this Signature of Authorized Official Printed Name of Authorized Official Printed mine of Political Entity Title Page 6 of 6 2012. August 22, 2012 Re; TML-Intergovernmental Rislc Pool Board Election —Place 11—Greg Ingham Dear Philip Sanders, You have recently received your Official Ballot to vote for four members of the Board of Trustees for the Texas Municipal League Intergovernmental Risk Pool. I am running for re-election for Place 11 and I would appreciate your vote and support. The mission of the TML Intergovernnental Risk Pool is to provide Texas cities and other units of local government with a stable source of risk financing and loss prevention services at the lowest cost consistent with sound business practices. By pursuing these goals together we have built one of the largest local government risk pools in the country. Over the years we have expanded our coverage lines to include not only cities, but also local governmental entities such as appraisal districts, councils A governments, housing authorities, water districts, and others to broaden our base. Last year our Pool's Loss Prevention Staff presented on -site training to nearly 9,000 local government employees and officials; and on-line training to another 6,800 participants to help provide a safer work environment and to control losses. These efforts, when combined with the Board's efforts to build a strong financial base have enabled your Pool to assume additional risk to control operating costs; at the same time return equity to our members sixteen times since 1993 totaling over $130,000,0000, and reduce rates for certain coverages in ten of the years during that time frame. The Plainview City Council and the TML-IIZP Board have nominated me for your consideration for Place 11 on the Texas Municipal League Intergovernmental Risk Pool Board of Trustees. I look forward to the opportunity to continue serving you — the cities and other local governments of Texas in this office. I would appreciate your vote and continuing support. Thank you, V; 45::� Greg Ingham, City Manager 901 BROADWAY a PLAINVIEW, TEXAS 79072 • TELEPHONE (t306) 296-1106 • FAX [806) 296-1125 • WWW.PLAINVIEWTX.ORG ex�l®�e the ®�,�v�iuni�ires CITY OE ANNA, TEXAS Council Meeting: September 25I 2012 Account Code #:_ Budgeted Amount. Item No. 19 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Chief Jenks Exhibits: ❑x Yes ❑ No AGENDA SUBJECT: Staff briefing on the Wildfire Network SUMMARY: As many of the Council are aware, there have been numerous vandalisms and other security concerns on the City's facilities and Park property. In an attempt to come up with a method of enhancing security for those locations, the Police Department discovered a vendor that builds and manages citywide wireless IP data networks. WildFire Connections PTZ cameras can be connected back to a single Network Video Recorder at no cost to the City. Only the cameras are purchased (max $2,000 each). We would propose allowing private -sector companies and businesses to join our network, at their expense, launching a citywide wireless camera network at virtually no cost to the City. WildFire Connections offers what we believe are attractive features to their systems: Wireless PTZ Cameras — IP-based, remotely controllable with full pan/tilt/zoom capabilities "Free Wi-Fi" -high-speed wireless Internet access indoor &outdoor deployments "Police Hotspots" —enables remote PTZ camera control &mobile data from in -car laptops Wireless 911 Video Call Boxes —delivers wireless two-way audio +video to 911 operators Wireless Video Command -Posts —includes wireless PTZ camera monitoring &remote control from police in -car laptops during crisis management situations...e.g. banks & schools STAFF RECOMMENDATION: Further exploration into the feasibility of the WildFire Connections system Y{OIIA? iiOMETOWN Council Meeting: September 255 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 20 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Exhibits: ❑Yes ❑ No AGENDA SUBJECT: CLOSED SESSION (EXCEPTIONS): Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions: a. consult with legal counsel regarding pending or contemplated litigation and/or on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Government Code (Tex. Gov't Code §551.071). Anticipated litigation with Amazing Solar Solutions; "City of Anna v. City of Weston, Cause No. 380-02570-2011, in the 380"' District Court of Collin County, Texas"; "City of Anna v. Walmat Inc., et al.; Cause No. 429-00288- 2009, in the 429th District Court of Collin County, Texas." NTMWD wastewater customer status request, b. discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of park land and acquisition of utility easements. c. discuss or deliberate personnel matters: City Secretary Annual Review. (Tex. Gov't Code §551.074); d. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the Board of Directors has received from a business prospect that the Board of Directors seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the Board is conducting economic development negotiations; or (2) To deliberate the offer of a financial or other incentive to a business prospect described by subdivision (1). (Tex. Gov't Code §551.087): discussion regarding an Economic Development Incentive Agreement for a business looking to locate in Anna. The council further reserves the right to enter into executive session at any time throughout any duly noticed meeting under any applicable exception to the Open Meetings Act. iiOMETOWN Council Meeting: September 25I 2012 Account Code #: N/A Budgeted Amount: N/A Item No. 21 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Exhibits: ❑Yes ❑ No AGENDA SUBJECT: Consider/Discuss/Action on any items listed on posted agenda for September 25, 2012 City of Anna Special Meeting or any Closed Session occurring during this Special Meeting, as necessary. SUMMARY: RECOMMENDATION: Council Meeting: September 25I 2012 Account Code #: N/A Budgeted Amount: N/A AGENDA SUBJECT: Adjourn. SUMMARY: Item No. 22 City Secretary's use only City of Anna City Council Agenda Staff Report Staff Contact: Philip Sanders Date Prepared: 8-20-12 Exhibits: ❑Yes ❑ No RECOMMENDATION: Staff recommends a motion to adjourn.